U.S. Code » Title 18 » Part PART I— CRIMES › Chapter CHAPTER 121— STORED WIRE AND ELECTRONIC COMMUNICATIONS AND TRANSACTIONAL RECORDS ACCESS

18 U.S.C. § 2705

Delayed notice

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(a)Delay of Notification.—(1) A governmental 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 notification 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 believe that notification of the existence of the court order may have an adverse result described in paragraph (2) of this subsection; or(B) where an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury subpoena is obtained, 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 notification 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 paragraph (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 evidence;(D) intimidation of potential witnesses; or(E) otherwise seriously jeopardizing an investigation 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 provided 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 nature of the law enforcement inquiry; and(B) informs such customer or subscriber—(i) that information maintained for such customer or subscriber by the service provider named in such process or request was supplied to or requested by that governmental authority and the date on which the supplying or request took place;(ii) that notification of such customer or subscriber was delayed;(iii) what governmental entity or court made the certification or determination pursuant to which that delay was made; and(iv) which provision of this chapter allowed such delay.(6) As used in this subsection, the term “supervisory official” means the investigative agent in charge or assistant investigative agent in charge or an equivalent of an investigating agency’s headquarters or regional office, or the chief prosecuting attorney or the first assistant prosecuting attorney or an equivalent of a prosecuting attorney’s headquarters or regional office.(b)Preclusion of Notice to Subject of Governmental Access.—A governmental entity acting under section 2703, when it is not required to notify the subscriber or customer under section 2703(b)(1), or to the extent that it may delay such notice pursuant to subsection (a) of this section, may apply to a court for an order commanding a provider of electronic communications service or remote computing service to whom a warrant, subpoena, or court order is directed, for such period as the court deems appropriate, not to notify any other person of the existence of the warrant, subpoena, or court order. The court shall enter such an order if it determines that there is reason to believe that notification of the existence of the warrant, subpoena, or court order will result in—(1) endangering the life or physical safety of an individual;(2) flight from prosecution;(3) destruction of or tampering with evidence;(4) intimidation of potential witnesses; or(5) otherwise seriously jeopardizing an investigation or unduly delaying a trial.(Added Pub. L. 99–508, title II, § 201[(a)], Oct. 21, 1986, 100 Stat. 1864.)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 52 cases (8 in the last 5 years), 1997–2026 · 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). · cites it 4× “Quon (2010) (holding that "a provider of e-mail services [is] undisputedly an [electronic communication service]"); In re United States for an Order Pursuant to 18 U.S.C. § 2705 (b) , 289 F.Supp.3d 201 , 208 (D.”
United States v. Appelbaum, 707 F.3d 283 (4th Cir. 2013). · cites it 4× “See 18 U.S.C. § 2705 (b). B. This case involves the § 2703(d) orders pertaining to the Government’s request for records of electronic communications relevant to an ongoing criminal investigation.”
Warshak v. United States, 532 F.3d 521 (6th Cir. 2008). · cites it 4× “" 18 U.S.C. § 2705 (a)(2), (b). What the majority leaves out is the fact that while the government was initially granted a 90-day delay before being required to notify Warshak of its searches of his email accounts, when the 90 days expired, the government ignored the statute and…”
In re Jason Leopold to Unseal Certain Elec. Surveillance Applications, 300 F. Supp. 3d 61 (D.C. Cir. 2018). · cites it 5× “The parties specifically requested that the Clerk's Office search for matters (1) corresponding with CM/ECF's § 2703(d) designated event type, regardless of whether accompanied by an application for delayed notice pursuant to 18 U.S.C. § 2705 (b) or filed by the USAO or a…”
In re the Search Warrant for [redacted].com, 248 F. Supp. 3d 970 (C.D. Cal. 2017). · cites it 8× “See 18 U.S.C. § 2705 (a)-(b). As relevant, under Section 2705(a), if the government obtains evidence from an RCS provider via a subpoena or court order, the government may delay notifying the subscriber for up to 90 days upon demonstrating or certifying that notification “may”…”
In re United States, 41 F. Supp. 3d 1 (D.C. Cir. 2014). · cites it 10× “ROBERTS, Chief Judge The government challenges two orders issued by Magistrate Judge John Facciola *3 regarding the government’s application for an order under 18 U.S.C. § 2705 (b). The first order invited Twitter, Inc.”
Microsoft Corp. v. United States Dep't of Just., 233 F. Supp. 3d 887 (W.D. Wash. 2017). · cites it 5× “for an Order Pursuant to 18 U.S.C. § 2705 (b), 131 F.Supp.3d 1266, 1268 (D.”
The Matter of 381 Search Warrants Directed to Facebook Inc. v. New York Cnty. Dist. Attorney's Off., 78 N.E.3d 141 (NY 2017). · cites it 2× “electronic communication service, or communications held for storage by a remote computing service, may be obtained either without notice to the subscriber pursuant to a warrant or with prior notice to the subscriber2 if the government uses a subpoena or obtains a court order…”
In Re Sealing & Non-Disclosure of Pen/Trap/2703(D) Orders, 562 F. Supp. 2d 876 (S.D. Tex. 2008). · cites it 4× “18 U.S.C. § 2705 (b)(l)-(5). 6 Precluding the service provider from giving notice of a § 2703(d) order is certainly a type of gag order, although the *880 prohibited act is “notice” rather than “disclosure.”
In the Matter of the Application of Jason Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 964 F.3d 1121 (D.C. Cir. 2020). “It does authorize the government to seek a separate order prohibiting the service provider from notifying anyone about the electronic surveillance order, “for such period as the court deems appropriate” to protect specified law enforcement interests in connection with ongoing…”
In Re: Application of the United States of Am. for Nondisclosure Order Pursuant to 18 U.S.C. 2705(b) for Grand Jury Subpoena Gj2014031422765, 45 F. Supp. 3d 1 (D.D.C. 2014). · cites it 10× “ROBERTS, Chief Judge The government challenges two orders issued by Magistrate Judge John Facciola regarding the government’s application for an order under 18 U.S.C. § 2705 (b). The first order invited Yahoo!, Inc.”
In Re Application for Pen Register & Trap/Trace Device With Cell Site Location Auth., 396 F. Supp. 2d 747 (S.D. Tex. 2005). “” 18 U.S.C. § 2705 (b)(l)-(5). Taken together, the presence of these provisions in other titles of the ECPA and their corresponding absence from the SCA cannot simply be dismissed as a coincidence or congressional absent-mindedness.”
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— 18 U.S.C. § 2705(B) — 1 case
Patrick Hately v. Dr. David Watts, 917 F.3d 770 (4th Cir. 2019). “Quon (2010) (holding that "a provider of e-mail services [is] undisputedly an [electronic communication service]"); In re United States for an Order Pursuant to 18 U.S.C. § 2705 (b) , 289 F.Supp.3d 201 , 208 (D.”
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