Saint Louis University Law Journal Saint Louis University Law Journal
Volume 65
Number 4
Tradeoffs: Technology, Privacy, and
the Law (Summer 2021)
Article 3
2021
The Fourth Amendment Limits of Internet Content Preservation The Fourth Amendment Limits of Internet Content Preservation
Orin S. Kerr
University of California - Berkeley
, orin@berkeley.edu
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Part of the Law Commons
Recommended Citation Recommended Citation
Orin S. Kerr,
The Fourth Amendment Limits of Internet Content Preservation
, 65 St. Louis U. L.J. (2021).
Available at: https://scholarship.law.slu.edu/lj/vol65/iss4/3
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SAINT LOUIS UNIVERSITY SCHOOL OF LAW
753
THE FOURTH AMENDMENT LIMITS
OF INTERNET CONTENT PRESERVATION
ORIN S. KERR*
A
BSTRACT
Every year, hundreds of thousands of Internet accounts are copied and set
aside by Internet providers on behalf of federal and state law enforcement. This
process, known as preservation, ordinarily occurs without particularized
suspicion. Any government agent can request preservation of any account at any
time. Federal law requires the provider to set aside a copy of the account just in
case the government later develops probable cause and returns with a warrant
needed to compel the account’s disclosure. The preservation process is largely
secret. With rare exceptions, the account owner will never know the preservation
occurred.
This Article argues that the Fourth Amendment imposes significant limits
on the preservation of Internet account contents. Preservation triggers a Fourth
Amendment seizure because the provider, acting as the government’s agent,
takes away the account holder’s control of the account. To be constitutionally
reasonable, the initial act of preservation must ordinarily be justified by
probable cause—and at the very least, in uncommon cases, by reasonable
suspicion. The government can continue to use the Internet preservation statute
in a limited way, such as to freeze an account while investigators draft a proper
warrant application. But the current practice, in which investigators order the
preservation of accounts with no particularized suspicion, violates the Fourth
Amendment.
* Professor, University of California, Berkeley Law School. A version of this article was delivered
as the annual Richard J. Childress Memorial Lecture at the St. Louis University Law School on
October 2, 2020. Thanks to Michael Levy, Chad Flanders, Bennett Capers, and Neil Richards for
comments on that lecture, and Tiffany Light and the editors at St. Louis University Law Journal for
excellent editing. Special thanks to the individuals interviewed “on background” for Section II of
this Article.
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INTRODUCTION
Imagine you are an FBI agent. One day you receive an anonymous tip that
a particular person has committed a crime. You go online and search for the
person’s name, and your search reveals that, like most American adults, the
person has a Facebook account. At this point, you only have an unverified tip.
You lack reasonable suspicion, much less probable cause, to believe a crime was
committed. And you have no particular reason to think the Facebook account
was involved. But imagine federal law gave you the power to preserve and set
aside the suspect’s entire Facebook account now—including every private
message and every saved photo—just in case you later had the probable cause
needed to access it.
Let me explain how this hypothetical law would work. At any time, you
could command any Internet provider to save all of the contents of any account
for up to 180 days. In response to your command, the provider would copy the
entire account and set aside the copy for you without notifying the account
holder. You would be unable to see the contents of the account unless you
eventually develop probable cause and obtain a warrant. But you would have
180 days to develop probable cause. If no probable cause emerged, the
preservation would end, and the provider would delete the saved copy without
notifying the suspect. And if you developed probable cause during the 180-day
period, you could get a warrant and compel the provider to hand over the
contents of the account that had been previously preserved.
This hypothetical law would have obvious appeal for government
investigators. A lot can happen in 180 days. The suspect might delete
incriminating files. The suspect might get wise to the investigation and delete
his online accounts to prevent the government from accessing them. By saving
accounts at the beginning of a case, investigators could ensure that every record
in existence at the outset is available if probable cause later develops. And it
would all happen behind the scenes, as the provider would not disclose the
preservation to the account holder. Even if the government eventually obtained
a warrant and filed criminal charges, the preservation would not be disclosed
during routine discovery. The entire process would remain secret.
As you might have guessed, this scenario is not just hypothetical. It
describes a federal law, 18 U.S.C. § 2703(f), as it is interpreted and used today.
The law states that Internet providers, “upon the request of a governmental
entity, shall take all necessary steps to preserve records and other evidence in its
possession pending the issuance of a court order or other process” about an
Internet account.
1
The provider must then preserve the records for 90 days,
1. 18 U.S.C. § 2703(f)(1).
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extended to 180 days if the government renews its request.
2
Since its enactment
in 1996, this authority has been routinely used by investigators to preserve online
contents such as e-mails, private messages, and stored photos.
Preservation under § 2703(f) occurs on an extraordinary scale but remains
almost completely unknown to the public. In recent years, the transparency
reports published by major Internet providers have begun to regularly include
preservation request information that helps reveal the scale.
3
The reports show
that, in 2019, over 310,000 Internet accounts were preserved in response to
§ 2703(f) requests.
4
That is roughly one preserved account for every 820 adults
in the United States in just one year.
5
A single company, Facebook, is
responsible for the lion’s share of preserved accounts: in 2019, Facebook
preserved over 222,000 accounts in response to § 2703(f) requests.
6
That is
about one preserved Facebook account for every 1,120 adults in the United
States.
7
The scale of preservation is massive.
And it is happening largely in secret. Although transparency reports can now
reveal raw numbers for those who know where to look, the law and practice of
preservation has long flown under the radar. Little is publicly known about how
law enforcement uses § 2703(f) or how providers comply with it. Providers do
not notify users if their accounts were preserved, and prosecutors normally do
not disclose the fact of preservation to defense counsel.
8
Judges have not focused on the statute, either. A query in Westlaw’s
ALLCASES database reveals only a few dozen judicial opinions since 1996 that
have even referenced the provision.
9
Within those opinions, the substantive
comments consist of a single paragraph in one unpublished district court case, a
brief denial of a pro se motion under 28 U.S.C. § 2255, and one or two sentences
2. See 18 U.S.C. § 2703(f)(2) (“Records referred to in paragraph (1) shall be retained for a
period of 90 days, which shall be extended for an additional 90-day period upon a renewed request
by the governmental entity.”).
3. See Liz Woolery, Ryan Boodish, & Kevin Bankston, The Transparency Reporting Toolkit
16 (Dec. 2016), https://na-production.s3.amazonaws.com/documents/Transparency_Reporting
_Guide_and_Template-Final.pdf [https://perma.cc/65XE-YXVN] (noting in 2016 that “only a
couple of companies currently report on preservation requests,” and “encourag[ing] additional
companies to begin keeping track of the number of preservation requests and consider adding it to
future transparency reports.”). By 2020, most but not all major providers include preservation
request numbers in their transparency reports. See infra Table 1.
4. See infra Table 1.
5. Id. According to the United States Census Bureau, there were about 328 million people in
the United States in 2019, and about 77.8% of those people were adults. See Quick Facts, U.S.
CENSUS BUREAU, https://www.census.gov/quickfacts/fact/table/US/PST045219 [https://perma.cc
/WTV9-PQ8Z].
6. See infra Table 1.
7. Id.
8. See infra Section II.
9. This is based on a Westlaw query in the ALLCASES database, conducted on April 19,
2021, searching for opinions that included the text “2703(f).”
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of dicta in two opinions by federal magistrate judges.
10
Hundreds of thousands
of accounts are preserved every year, but how the regime of preservation
works—and whether it is constitutional—has largely escaped scrutiny.
This Article has two goals. The first goal is to reveal for the first time how
preservation under § 2703(f) actually works. As part of my research for this
article, I interviewed lawyers who have extensive and diverse experience with
practices under § 2703(f). These interviews were conducted “on background,”
with one exception,
11
which means I can report the substance of what I was told
but cannot identify the sources or use direct quotes. This is non-traditional for a
law review article. It means, among other things, that I will make a lot of factual
assertions with no footnotes.
12
However, the candor enabled by this arrangement
allows me to present what I believe is an accurate picture, not previously
available to the public, of how Internet content preservation works today.
My interviews reveal that preservation under § 2703(f) occurs on a wide
scale with little scrutiny because law enforcement and providers consider it a
privacy non-event. For law enforcement, broad preservation requests can be
made whenever a suspect is identified just in case probable cause later
emerges.
13
More often than not, no warrant will follow. Only about half of
preservation requests lead to any legal process, and a smaller subset of cases
lead to the search warrants needed to compel preserved contents.
14
For
providers, preservation is rote and often automated. Providers use snapshot tools
that copy entire accounts and set them aside. If the government returns with a
warrant, providers take on the sometimes-complex task of assembling the
warrant production from two different copies of the account—the preserved
copy, and the copy that exists when the warrant is served.
15
Notice is normally
not provided, either to users when no litigation has occurred or to defendants if
charges are filed, mostly because preservation itself is not considered
significant.
16
The second goal of this article is to articulate the Fourth Amendment limits
of Internet content preservation. In my view, existing practices must be sharply
curtailed. When the government requests preservation and the provider
10. The single paragraph is United States v. Rosenow, No. 17CR3430 WQH, 2018 WL
6064949, at *10 (S.D. Cal. Nov. 2018) (discussed infra note 28). The pro se motion under 28 U.S.C.
§ 2255 is United States v. Basey, No. 4:14-CR-00028-RRB, 2021 WL 1396274, at *7 (D. Alaska
Apr. 13, 2021). The dicta appears in opinions by former Magistrate Judges Orenstein and Smith
that are discussed infra note 61.
11. The exception was Michael L. Levy, formerly the Chief for Computer Crimes in the U.S.
Attorney’s Office for the Eastern District of Pennsylvania. I thank Mr. Levy for his interview and
feedback.
12. The horror.
13. See infra Section II.
14. See id.
15. Id.
16. Id.
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complies, the provider acts as the government’s agent and becomes a state
actor.
17
The process of copying and setting aside the contents of an Internet
account is a Fourth Amendment seizure because it interferes with a user’s right
to control his private communications.
18
For Internet content preservation to be
a reasonable seizure, it must be justified at the outset by at least reasonable
suspicion—and in most cases, preservation will require probable cause.
19
When
probable cause exists, preservation allows the government considerable time to
prepare and submit a proper warrant application. But preservation without cause,
based only on the hope of developing probable cause someday, is not permitted.
Broadly speaking, this article calls for a shift in how law enforcement,
providers, and courts envision content preservation under § 2703(f). Since its
enactment, the statute has been understood as allowing a windfall for the
government. Whenever the government has wanted an account preserved, it has
had the unilateral power and complete discretion to order it preserved. This
article hopes to bring Internet content preservation into the traditional
framework of Fourth Amendment protection. It presents Internet content
preservation as similar in principle from traditional kinds of temporary seizures
pending further investigation involving postal mail, packages, and physical
computers. Similar constitutional limits established for temporary physical
seizures of physical property should apply to Internet content preservation.
Section 2703(f) should continue to play an important role in the Stored
Communications Act (“SCA”). But the era of unlimited preservation, just in case
probable cause might emerge, must end.
With apologies for being autobiographical, I want to add a few words about
my history with the topic of this article. I first encountered the § 2703(f)
authority when I was a lawyer at the Justice Department from 1998 to 2001. At
the time, and for several years later, I saw no reason to question the common
assumption that Internet content preservation does not trigger Fourth
Amendment limits. That changed for me around 2010, when I wrote Fourth
Amendment Seizures of Computer Data.
20
An implication of that article, drawn
explicitly in it, was that preservation was a government seizure.
21
This led me
to think that the Fourth Amendment likely imposed unappreciated restrictions
on the § 2703(f) authority. When I would occasionally lecture to defense counsel
groups about Internet surveillance, I urged them to make Fourth Amendment
17. See infra Section III.
18. See id.
19. See infra Section IV.
20. Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Y
ALE L.J. 700 (2010).
21. See id. at 723–24 (arguing that “a government request to an ISP to make a copy of a
suspect’s remotely stored files and to hold it while the government obtains a warrant” is a seizure).
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challenges to preservation along those lines. In 2016, I published a blog post
tentatively articulating the basic principles I offer in this article.
22
My understanding is that these arguments helped inspire a very small
number of challenges to § 2703(f). The most notable challenge, United States v.
Basey,
23
was fully briefed in the Ninth Circuit with amicus participation by the
ACLU.
24
Basey was argued in the Ninth Circuit in August 2019.
25
The Ninth
Circuit did not reach the merits in Basey, however, because the preservation
arguments had not been raised in a timely way before the district court.
26
A
second Ninth Circuit challenge was similarly resolved without a merits ruling.
27
Even today, the only Fourth Amendment challenge to § 2703(f) that has been
adjudicated on the merits is one unpublished district court case about cell-site
location records that rejected the claim in a single cryptic paragraph.
28
That case
is currently on appeal to the Ninth Circuit, although it is unclear how directly
the preservation issue figures into the appeal.
29
22. See Orin S. Kerr, The Fourth Amendment and Email Preservation Letters, WASH. POST
(Oct. 28, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/10/28/the-
fourth-amendment-and-email-preservation-letters/ [https://perma.cc/8CCG-WL2B] (arguing that
“the use of preservation letters for contents raises really serious constitutional concerns”).
23. 784 F. App’x. 497, 500 n.1 (9th Cir. 2019).
24. Brief for American Civil Liberties Union & American Civil Liberties Union of Alaska
Foundation as Amici Curiae Supporting Defendant-Appellant, United States v. Basey, 784 F.
App’x 497 (9th Cir. 2019) (No. 18-30121), 2019 WL 829338 [hereinafter ACLU Basey Brief].
25. The oral argument video in Basey is available at https://www.youtube.com/watch?v=q1U
E8H52rTs [https://perma.cc/B658-YVCD].
26. See Basey, 784 F. App’x. at 499 (concluding that the district court had not reached the
merits of a § 2703(f) challenge proposed in the district court because it had not been timely filed,
and that the district court had not abused its discretion in denying the proposed motion).
27. See United States v. Perez, 798 F. App’x. 124, 126 (9th Cir. 2020) (declining to address
how the Fourth Amendment applies to § 2703(f) because it was not clear error for the district court
to have found that the evidence compelled was from the warrant copy and not the preservation
copy).
28. See United States v. Rosenow, No. 17CR3430 WQH, 2018 WL 6064949, at *10 (S.D.
Cal. Nov. 2018). In Rosenow, the defendant argued to the district court that preserving his Yahoo
and Facebook accounts violated the Fourth Amendment. Id. The court disagreed, stating that “the
preservation requests in this case did not amount to an intrusion subject to Fourth Amendment
requirements.” Id. Part of the court’s explanation suggests that the preservation was not a seizure
at all. See id. (“The preservation requests in this case did not interfere with the Defendant’s use of
his accounts . . .”). Part of the court’s explanation suggests that if it was a seizure, it was a
reasonable seizure. Id. (“The statutory authorization to preserve a wire or electronic
communications account held by a third-party online provider recognizes that the information is
easily and readily destroyed and allows its preservation for a short period in order to allow law
enforcement to seek further legal process.”).
29. See Brief of Defendant-Appellant at 32–33, United States v. Rosenow, No. 20-50052 (9th
Cir. June 29, 2020). The appellant’s brief was filed June 29th, 2020, and the government’s
answering brief was filed November 11, 2020. Id.; Brief of Plaintiff-Appellee, United States v.
Rosenow, No. 20-50052 (9th Cir. Nov. 11, 2020). A review of the briefs suggests that the
preservation issues are not a substantial part of the appeal. The Fourth Amendment limits on
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I include this background to alert readers that the subject of this article has
been simmering for a while. Appellate briefs have been written, even though
they have not yet led to judicial precedents.
30
I have returned to the issue out of
hope that more detailed and certain treatment might push challenges along.
Ideally, a better understanding of how Internet content preservation works might
help trigger more litigation and oversight. A detailed constitutional analysis,
made outside the pressures of litigation but with the benefit of past briefing, can
work through my own views and perhaps inform future consideration of the
question. And understanding how preservation practices are now hidden, and
how lawyers can bring them to light, might help offer a roadmap for litigating
challenges.
This article has five Sections. Section I explores the text of the Internet
preservation statute, 18 U.S.C. § 2703(f). Section II explains how preservation
works based on the “on background” interviews I conducted. Section III explains
why Internet preservation triggers a Fourth Amendment seizure. Section IV
argues that Internet preservation normally requires probable cause, and at the
very least, reasonable suspicion. Section V offers a broader reflection of the
proper role of § 2703(f), as well as thoughts on how defense counsel might
challenge preservation and how the exclusionary rule might apply.
I.
THE STATUTORY TEXT
This Section explains the statutory basis of Internet content preservation. It
starts with the text, found in 18 U.S.C. § 2703(f) of the SCA, and the recognized
purpose it serves. It then explores three textual ambiguities: when the
government can make a preservation request, what remedies exist for violations,
and what records the statute covers.
preservation are raised, but the appellant makes the argument only in a single paragraph. See Brief
of Defendant-Appellant, supra, at 32–32. The government’s response is also short. See Brief of
Plaintiff-Appellee, supra, at 50–51.
30. The constitutional debate over 18 U.S.C. § 2703(f) has also led recently to what I believe
is the first published law review article on the topic. Armin Tadayon, Preservation Requests and
the Fourth Amendment, 44 S
EATTLE L. REV. 105 (2020). Tadayon’s article presents an overview
of the two sides of the policy and constitutional debate over preservation requests. See id. at 121–
48. In the article’s conclusion, Tadayon proposes (as matter of policy rather than the Fourth
Amendment, if I read it correctly) that preservation requests should require at their initiation the
same level of cause that the Stored Communications Act requires to disclose those particular
records. See id. at 148.
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A. The Text and Purpose
The preservation authority of 18 U.S.C. § 2703(f) was added to the SCA in
1996.
31
The text, which has not changed since the statute was enacted, reads as
follows:
(f) Requirement To Preserve Evidence.
(1) In general.—
A provider of wire or electronic communication services or a remote computing
service, upon the request of a governmental entity, shall take all necessary steps
to preserve records and other evidence in its possession pending the issuance of
a court order or other process.
(2) Period of retention.—
Records referred to in paragraph (1) shall be retained for a period of 90 days,
which shall be extended for an additional 90-day period upon a renewed request
by the governmental entity.
Section 2703(f) deals with the problem of deleted information.
32
It provides
a way to temporarily freeze records so they can be obtained later in preserved
form with legal process. The Justice Department’s 2009 manual on searching
and seizing computers explains the rationale of § 2703(f) as follows:
In general, no law regulates how long network service providers must retain
account records in the United States. Some providers retain records for months,
others for hours, and others not at all. As a result, some evidence may be
destroyed or lost before law enforcement can obtain the appropriate legal order
compelling disclosure. For example, suppose that a crime occurs on Day 1,
agents learn of the crime on Day 28, begin work on a search warrant on Day 29,
and obtain the warrant on Day 32, only to learn that the network service provider
deleted the records in the ordinary course of business on Day 30. To minimize
the risk that evidence will be lost, the SCA permits the government to direct
providers to “freeze” stored records and communications pursuant to 18 U.S.C.
§ 2703(f).
33
31. See Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104–132, § 804,
10 Stat. 1214, 1305 (1996).
32. Cf. In re Search of Yahoo, Inc., No. 07–3194–MB, 2007 WL 1539971 at *1 n.3 (D. Ariz.
May 21, 2007) (“To minimize the risk that electronic information will be lost, Title 18 U.S.C. §
2703(f) permits the Government to direct network service providers to preserve records pending
the issuance of compulsory legal process.”).
33. U.S.
DEP’T OF JUST., SEARCHING AND SEIZING COMPUTERS AND OBTAINING
ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS 139 (2009), https://www.justice.gov/sites
/default/files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf [https://perma.cc/3CSV-S93S]
[hereinafter 2009 DOJ Manual]. By way of full disclosure, I authored the original 2001 edition of
the manual, which includes a similar discussion. See U.S.
DEP’T OF JUST., SEARCHING AND
SEIZING COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL INVESTIGATIONS 138
(2001) [hereinafter 2001 DOJ Manual].
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The preservation authority might be implicated by three different kinds of
deletions. First, a provider might have a policy of deleting non-content records,
such as login records or past assigned IP addresses, in the ordinary course of
business after a certain period of time. Preservation may be useful to ensure the
records that the company would otherwise delete are still available. Second, a
user might decide to delete specific records, and especially specific contents of
his communications, such as e-mails, instant messages, or posts. Preservation
might save a copy of the messages before the user deletes them, either as a matter
of routine or because he realizes he is under investigation and wants to destroy
evidence. Finally, either the user or the provider might decide to delete an
account altogether. Preservation may allow the government to obtain evidence
from an account that otherwise would no longer exist by the time the government
served legal process.
Two aspects of § 2703(f) are particularly notable. The first is its broad scope.
A preservation request can be made by any “governmental entity,” defined by
the statute as “a department or agency of the United States or any State or
political subdivision thereof.”
34
The requestor does not need to be a law
enforcement agency. Any department or agency of any federal, state or local
government will do. The preservation authority also applies to investigations of
any crime at all, or even outside any investigation.
35
And the statute imposes its
mandate on any “provider of wire or electronic communication services or a
remote computing service.”
36
Translating the technical terms of the SCA into
English, that means roughly that any company that provides messaging or
storage services must comply with a preservation request.
37
On its face, then,
the statute is drafted remarkably broadly: it allows any government agency to
compel any Internet provider.
38
34. 18 U.S.C. § 2711(4) (defining “governmental entity”).
35. This broad scope contrasts with a second Internet content preservation authority in federal
law, 18 U.S.C. § 2258A(h). That section applies when a provider has come across images of child
pornography and sends the required report about the discovered images to the National Center for
Missing and Exploited Children (NCMEC) pursuant to 18 U.S.C. § 2258A(a). Under § 2258A(h),
the sending of the report “shall be treated as a request to preserve the contents provided in the report
for 90 days after the submission” to NCMEC. Id. at § 2258A(h)(1). The provider can delete the
account after discovering child pornography in it, but the provider must first preserve the contents
relevant to its report to ensure it is available for later investigation or prosecution. Id. at
§ 2258A(h)(3).
36. 18 U.S.C. § 2703(f)(1).
37. See generally Orin S. Kerr, A User’s Guide to the Stored Communications Act, and A
Legislator’s Guide to Amending It, 72 G
EO. WASH. L. REV. 1208, 1213–18 (2004) (explaining the
meaning of “remote computing service” and “electronic communication service” in the Stored
Communications Act).
38. The Council of Europe’s 2001 Convention on Cybercrime, of which the United States
became a signatory in 2006, emphasized the importance of provisions such as § 2703(f) by
requiring every signatory nation to have a law to “order or similarly obtain the expeditious
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The second notable aspect of § 2703(f) is its brevity. The entire provision,
including its title, uses only eighty-five words.
39
Brevity is a virtue, but § 2703(f)
leaves a lot uncertain. The remainder of this Section focuses on three statutory
ambiguities that result in significant part from this sparse text. The first question
is when the government can make a request; the second is the remedy for
violations; and the third is what kind of records the statute covers. It is important
to understand these areas of uncertainty before considering how the Fourth
Amendment might apply to preservation under the statute.
B. When Can the Government Make a Request?
The first uncertainty in § 2703(f) is when the government can make a
preservation request. The statute is silent on this. As drafted, the text only
regulates providers. When the government makes a request, the language states,
the provider “shall take all necessary steps to preserve records and other
evidence in its possession pending the issuance of a court order or other
process.”
40
Providers have to comply when a request is made. But when can a
request be made?
I think there are three ways to interpret the statute’s silence about when
requests can be made. First, the statutory silence might reflect an implicit
congressional judgment that government use of § 2703(f) should be unlimited
by law. That is, perhaps § 2703(f) only regulates provider responses to requests
because requests can be made at the government’s sole discretion. This is the
prevailing view today among government officials and service providers, as the
discussion in Section II explains.
41
There are two other possible interpretations, however. Perhaps the limitation
that preservation should occur “pending the issuance of a court order or other
process” is designed to limit government requests to cases when legal process is
already forthcoming.
42
Under this view, perhaps preservation requests can be
preservation of specified computer data for a period of time as long as necessary, up to a maximum
of ninety days,” subject subsequent renewal, “to enable the competent authorities to seek its
disclosure.” Council of Eur., Convention on Cybercrime 8 (2001), https://rm.coe.int/1680081561
[https://perma.cc/JK3P-QTHG]. I believe that the similarity between the 1996 text of § 2703(f) and
the 2001 Council of Europe language is no accident: the then-recent United States statute inspired
the later Convention provision. Cf. Orin S. Kerr & Sean D. Murphy, Government Hacking to Light
the Dark Web: What Risks to International Relations and International Law?, 70 S
TAN. L. REV.
ONLINE 58, 62–63 (2017) (noting that DOJ “played a leading role in the Council of Europe
Convention on Cybercrime”).
39. Canada’s equivalent statutory provisions have over 600 words. The preservation demand
statute is 353 words long, see Canada Criminal Code, R.S.C. 1985 c C-46 § 487.012; and the
companion preservation order statute is 269 words, see Canada Criminal Code, R.S.C., 1985 c C-
46 § 487.013.
40. 18 U.S.C. § 2703(f)(1).
41. This is the government’s view, as Section II explains.
42. 18 U.S.C. § 2703(f)(1).
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made only when the government is actively seeking the court order or other
process required by law to disclose the materials preserved.
Finally, perhaps the lack of text on when requests can be made means that
§ 2703(f) only dictates the provider response to a request but it does not try to
regulate when the government can make requests.
43
On this view, perhaps some
other area of law, such as the Fourth Amendment, might independently limit
when preservation requests are made.
C. What Are the Remedies for Violations?
Another important question left open by § 2703(f) is the remedy for
violations. “[U]pon the request of a governmental entity,” the statute provides,
the provider “shall take all necessary steps” to preserve.
44
But what if the
provider refuses? It’s not clear whether the government can compel a reluctant
provider into complying, and if so, what source of law authorizes the
compulsion. Section 2703(f) issues the command but says nothing about how to
enforce it. The statute is simply silent on the remedy.
Neither of the existing remedies provisions of the SCA seems to cover this.
One provision, § 2712, authorizes civil damages against the United States for
willful violations.
45
This Section is plainly not implicated by a government claim
that the provider acted wrongly.
The second provision, § 2707, provides a wide range of remedies for civil
claims against entities other than the United States that can be brought by “any
provider of electronic communication service, subscriber, or other person
aggrieved by any violation of this chapter.”
46
A governmental entity is clearly
not a provider or subscriber. Nor would a government appear to be a “person
aggrieved by any violation of this chapter,” as the SCA incorporates the Wiretap
Act’s definition
47
of “aggrieved person” as “a person who was a party to any
intercepted wire, oral, or electronic communication or a person against whom
the interception was directed.”
48
43. I return to this question in Section V Part B(1), where the answer may relate to the scope
of the exclusionary rule.
44. 18 U.S.C. § 2703(f).
45. Section 2712(a) states in relevant part:
Any person who is aggrieved by any willful violation of this chapter or of chapter 119 of
this title or of sections 106(a), 305(a), or 405(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1801 et seq.) may commence an action in United States District
Court against the United States to recover money damages.
46. 18 U.S.C. § 2707(a).
47. See 18 U.S.C. § 2711(1) (“the terms defined in section 2510 of this title have, respectively,
the definitions given such terms in that section”).
48. 18 U.S.C. § 2510(11). I use the cautionary word “appears” because I suppose there is a
theoretical argument that a “person aggrieved” in § 2707 is different from an “aggrieved person”
defined in § 2510(11). It seems more likely that they are the same, however, with the phrase “person
aggrieved” used in § 2707 instead of the defined term “aggrieved person” to avoid the awkward
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Given that the SCA expressly rejects other remedies for non-constitutional
violations of the statute,
49
it is not clear what, if any, remedy exists for a
provider’s refusal to comply with a preservation request. The most plausible way
to test whether a remedy exists for § 2703(f) refusals would be for a government
to bring a legal action in court seeking to compel preservation from a
noncooperating provider. A court would then consider what powers the court
has to enforce the government’s request. But how this might work, and on what
basis the court might enter the order, is not answered by the statutory text. And
the issue appears never to have been litigated, primarily because major Internet
providers uniformly consider compliance with § 2703(f) requests to be a routine
part of the regime of lawful access under the SCA.
50
D. What Records Can Be Preserved?
The third and final textual uncertainty in § 2703(f) is what records the law
covers. According to the statute, a notified provider must respond to a request
by preserving “records and other evidence in its possession.”
51
The phrase
“records and other evidence in its possession” is not defined in the statute, and
a Westlaw search though the USCA database suggests it is unique in the United
States Code to § 2703(f). The phrase is particularly puzzling because other parts
of § 2703 already break down the world of user records into two categories:
“contents,”
52
on one hand, and “a record or other information pertaining to a
subscriber to or customer of such service (not including the contents of
communications),” on the other.
53
The precise line between these two categories
can be murky, but the basic distinction between them has received considerable
attention.
54
phrasing that could otherwise be caused by the subsequent specification in § 2707 of what
“aggrieved” the “person,” namely, a violation of the SCA. The language here admittedly is not
ideal, as the definition of “aggrieved person” in § 2510(11) is drafted in a way specific to the
Wiretap Act and does not translate perfectly to the SCA. But the legislative history of § 2510(11)
suggests that Congress was trying to define “aggrieved person” to reflect Fourth Amendment law
on who has standing to challenge a search or seizure, see S.
REP. NO. 90-1097, at 114 (1968), and
perhaps that same notion applies to “person aggrieved” in § 2707.
49. See 18 U.S.C. § 2708 (“The remedies and sanctions described in this chapter are the only
judicial remedies and sanctions for nonconstitutional violations of this chapter.”).
50. Notably, providers cannot ordinarily be held liable for complying with § 2703(f) requests
because of the good-faith exception of § 2703(e) and § 2707(e). See 18 U.S.C. § 2707(e) (“A good
faith reliance on . . . a request of a governmental entity under section 2703(f) of this title . . . is a
complete defense to any civil or criminal action brought under this chapter or any other law”).
51. 18 U.S.C. § 2703(f)(1).
52. 18 U.S.C. § 2510(8) (“contents”, when used with respect to any wire, oral, or electronic
communication, includes any information concerning the substance, purport, or meaning of that
communication); 18 U.S.C. § 2703(a)-(b).
53. 18 U.S.C. § 2703(c).
54. See, e.g., W
AYNE R. LAFAVE, ET AL., CRIMINAL PROCEDURE § 4.8 (6th Ed. 2017).
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Congress’s use of the phrase “records and other evidence in its possession”
in § 2703(f) prompts the question of whether § 2703(f) requires preservation
only of non-content records or whether it also extends to contents of
communications.
55
Law enforcement and major providers have assumed, since
its enactment, that § 2703(f) covers contents as well as non-content records. The
sample § 2703(f) letter that was included in the 2001 Justice Department manual
offered language that included requests for “[a]ll stored electronic
communications” for the account preserved.
56
The 2009 edition of the manual
made the coverage of contents more explicit, as it asks for “contents of any
communication or file stored by or for the Account and any associated
accounts.”
57
The longstanding practice is for preservation requests to ordinarily
include contents of the preserved account. Some judges have assumed this is
correct, although without analysis of the point.
58
This is important for two reasons. First, the contents of e-mails and other
Internet messages are presumptively protected by the Fourth Amendment, while
most non-content records are not.
59
Second, extending § 2703(f) to the contents
of communications implies a slightly different role for preservation. Non-
content records typically are controlled by the provider, but contents are
controlled by users. If § 2703(f) is limited to non-content records, the statute
merely helps prevent data from being lost due to decisions by providers to delete
records in the ordinary course of business. If § 2703(f) covers the contents of
communications, however, the preservation authority becomes a means of
ensuring government access to messages that users themselves might otherwise
opt to destroy.
55. 18 U.S.C. § 2703(f).
56. 2001 DOJ Manual, supra note 33, at 214. The term “electronic communications” is
defined in 18 U.S.C. § 2510(12) to mean “any transfer of signs, signals, writing, images, sounds,
data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic,
photoelectronic or photooptical system that affects interstate or foreign commerce.”
57. 2009 DOJ Manual, supra note 33, at 225.
58. E.g., in United States v. Dougherty, Crim. No. 19-64-JLS, 2020 WL 3574467 (E.D. Pa.
July 1, 2020), the defendant sought a Franks hearing based on an agent’s claim in a warrant affidavit
that AT&T did not retain the defendant’s text messages. This was a false statement, the defendant
claimed, because the government could have sent AT&T a preservation request and later obtained
the messages with a warrant. See id. Although the court rejected the request for a Franks hearing,
its ruling did not take issue with the assumption behind the claim that preservation could have
extended to the contents of messages. See id. at *5.
59. The contents of e-mails and other messages have been held to be protected; non-content
records, with the exception of at least some kinds of cell-site location information, are unprotected.
See L
AFAVE, supra note 54, at § 4.4 (summarizing current caselaw on applying the Fourth
Amendment to the Internet).
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II. INSIDE THE WORLD OF § 2703(F) PRESERVATION
This Section explains how § 2703(f) is used by law enforcement and
providers today. The discussion is based primarily on interviews I conducted in
October and November 2020 with lawyers who have recent experience with the
statute. I conduct the interviews “on background,” with one exception, enabling
me to share what the lawyers said without disclosing their identifies or quoting
them. By interviewing a range of subjects with different experiences, and, where
helpful, connecting those interviews to the public transparency reports published
by major providers, I was able to piece together how § 2703(f) is being
implemented.
This Section presents the fruits of those interviews. It begins with an
overview of how both law enforcement and providers perceive the preservation
process. It then turns to the nuts and bolts of how preservation requests are made
and how providers respond to those requests. It next discusses whether law
enforcement follows up with preservation requests and how providers respond
if no follow up occurs. It then addresses how providers comply with warrants
for previously preserved accounts. It concludes by explaining the lack of notice
to users.
A. A Widespread Practice That Has Escaped Scrutiny
Both law enforcement and providers consider preservation under § 2703(f)
to be ubiquitous and unobjectionable. Although providers preserve hundreds of
thousands of accounts every year,
60
the shared thinking is that this widespread
practice does not raise privacy concerns. Governments and providers alike
consider preservation merely an anticipatory step separate from disclosure.
Because the government needs a warrant to compel disclosure of contents, the
mere preservation of contents is a non-event.
Those in law enforcement believe that there are few limits on the use of §
2703(f). In their view, the statute gives the government discretion about when to
preserve account contents and how many accounts can be preserved.
Preservation letters are typically submitted early in an investigation just in case
probable cause eventually emerges. It is common for law enforcement to issue
preservation requests when a suspect has a known e-mail or social media
account. The primary recognized limit on § 2703(f) is that the authority only
extends to previously made records. As the Department of Justice (“DOJ”)
manual states, Ҥ 2703(f) letters should not be used prospectively to order
providers to preserve records not yet created.”
61
60. See infra Table 1, which provides published preservation numbers for the year 2019.
61. See 2009 DOJ Manual, supra note 33, at 140. I agree that § 2703(f) has this limit, as the
statute by its terms requires a provider to “take all necessary steps to preserve records and other
evidence in its possession.” 18 U.S.C. § 2703(f)(1) (emphasis added). To “preserve” is to maintain
the status quo, and a communication not yet created cannot already be “in” a provider’s possession.
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Providers have a similar view of preservation requests. Preservation is
considered a rote process that receives little attention. Providers understand that
law enforcement will seek preservation in a very large number of cases, and it is
uncommon for requests to receive scrutiny. The basic perception is that
preservation is “no harm, no foul,” and that it raises no special privacy concerns.
When the government follows up a preservation request with legal process,
which occurs about half the time, the legal process (rather than the preservation)
becomes the focal point. When the government fails to follow up with legal
process, on the other hand, the preserved records are simply deleted and
forgotten.
The scale of preservation that occurs is quite remarkable. Major Internet
providers publish bi-annual transparency reports about law enforcement
requests for customer data.
62
Although not every provider includes details about
the preservation process in their reports,
63
the major providers have reported the
following numbers of preservation requests and preserved accounts by federal,
state, or local governments for 2019:
64
In my view, this precludes applying § 2703(f) prospectively. Some courts have not found this limit
obvious, however. Notably, the Sixth Circuit has expressed uncertainty about the point. See United
States v. Warshak, 631 F.3d 266, 290 n.21 (6th Cir. 2010) (“Some courts and commentators have
suggested that § 2703(f) applies only retroactively . . . However, the language of the statute, on its
face, does not compel this reading.”) (internal citations omitted). Two somewhat adventurous
federal magistrate judges have suggested in dicta that § 2703(f) might apply prospectively to require
the saving of records that can later be compelled with a single court order. See In re Application,
396 F. Supp. 2d 294, 313 (E.D.N.Y. 2005) (Orenstein, M.J.); In re Order, 31 F. Supp. 3d 889, 895
(S.D. Tex. 2014) (Smith, M.J.).
62. See generally Isedua Oribhabor & Peter Micek, The What, Why, and Who of Transparency
Reporting, A
CCESS NOW (Apr. 2, 2020, 3:02 PM), https://www.accessnow.org/the-what-why-and-
who-of-transparency-reporting/ [https://perma.cc/VBH2-SJY3] (summarizing the history and
purpose of transparency reports). Access Now maintains a useful page that provides links to current
transparency reports. See Transparency Reporting Index, A
CCESS NOW, https://www.accessnow
.org/transparency-reporting-index/ [https://perma.cc/FMB6-DFRB].
63. Microsoft is an example of a provider that does not include preservation numbers in its
transparency report. See Microsoft Law Enforcement Requests Report, M
ICROSOFT,
https://www.microsoft.com/en-us/corporate-responsibility/law-enforcement-requests-report
[https://perma.cc/SED4-KW78].
64. I obtained the numbers in the chart below by accessing the privacy reports and combining
the January to June 2019 numbers with the July to December 2019 numbers. I selected the year
2019 because it was the most recent calendar year for which the reports were available. I excluded
requests from foreign governments.
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TABLE 1: PRESERVATION IN 2019 IN RESPONSE TO § 2703(F) REQUESTS
Provider Number of Requests Accounts Preserved
Facebook
65
131,600 222,800
Google
66
23,210 57,509
Verizon
67
7,196 17,445
Apple
68
4,998 9,319
Twitter
69
2,255 4,068
Dropbox
70
695 (2nd half only) 800 (2nd half only)
These numbers show that Facebook receives by far the highest number of
preservation requests. Facebook preserves about four times as many accounts as
Google, which reports the second-highest number of preservation requests. In
2019 alone, over 222,000 Facebook accounts were preserved—a rate of about
one account for every 1,120 adults in the United States.
71
Facebook dominates the preservation request numbers for several reasons.
First, surveys suggest that about seventy percent of American adults in 2019
were Facebook users.
72
Second, Facebook’s rule that users must register in their
65. Transparency: United States, FACEBOOK, https://transparency.facebook.com/govern
ment-data-requests/country/US [https://perma.cc/FP6W-GJKU.
66. Transparency Report: Global Requests for User Information, G
OOGLE, https://transparen
cyreport.google.com/user-data/overview?user_requests_report_period=authority:US&legal_pro
cess_breakdown=expanded:0,1&lu=legal_process_breakdown [https://perma.cc/T343-TJH3].
67. Government Data Requests, V
ERIZON, https://www.verizonmedia.com/transparency/re
ports/government-data-requests.html [https://perma.cc/QYH5-WCMQ]. Verizon’s page notes:
The chart below shows the number of preservation requests we received within this
reporting period, as well as the number of accounts specified in those requests. If
information we preserved is subsequently sought by the government agency with legal
process, the request (and our response) will be reflected as Government Data Request in the
reporting period during which the request was made.
68. Apple Transparency Report: Government and Private Party Requests, A
PPLE 9 (Jan.–June
2019), https://www.apple.com/legal/transparency/pdf/requests-2019-H1-en.pdf [https://perma.cc
/ZVL5-PN9D]; Apple Transparency Report: Government and Private Party Requests, A
PPLE 9
(July–Dec. 2019), https://www.apple.com/legal/transparency/pdf/requests-2019-H2-en.pdf
[https://perma.cc/V9U2-7PDX].
69. Information Requests, T
WITTER, https://transparency.twitter.com/en/reports/information-
requests.html#2019-jul-dec [https://perma.cc/NL9L-N72K].
70. Transparency at Dropbox: Reports, D
ROPBOX, https://www.dropbox.com/transparency
/reports [https://perma.cc/6UJK-6HF7] (tab at “Request Type;” then “Preservations;” data only
available for second half of 2019).
71. U.S.
CENSUS BUREAU, supra note 5. That amounts to over 255 million adults.
72. See Andrew Perrin & Monica Anderson, Share of U.S. Adults Using Social Media,
Including Facebook, Is Mostly Unchanged Since 2018, P
EW RESEARCH CENTER (Apr. 10, 2019),
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own name makes it unusually easy to identify if a person has an account and
which account belongs to them.
73
Third, Facebook offers a range of tools to
locate other users, including by their names.
74
This means that investigators
often can quickly check if a suspect has a Facebook account and, if so, can send
a preservation request to preserve that account.
Table 1 also indicates that preservation requests often cover multiple
accounts. The ratios vary from provider to provider, but a two-to-one ratio
between preserved accounts and requests seems common. This likely reflects a
range of practices, with many preservation requests covering just one account
and others seeking the preservation of many accounts at once.
B. How Government Agents Make Preservation Requests
The major Internet providers have web portals that enable government
agents to submit law enforcement requests and court orders, including
preservation requests.
75
Several portals have public-facing pages,
76
although a
government e-mail address is needed to set up an account.
77
The process of making a preservation request is simple. Once logged in to
an account through the portal, the government agent can simply click on the
appropriate boxes and enter the account name and request preservation.
78
The
statute does not require a formal request in a letter on government letterhead,
https://www.pewresearch.org/fact-tank/2019/04/10/share-of-u-s-adults-using-social-media-
including-facebook-is-mostly-unchanged-since-2018/ [https://perma.cc/Z9QA-VTBD] (“Roughly
seven-in-ten adults (69%) say they ever use the platform”).
73. See Terms of Service, F
ACEBOOK § 3, https://www.facebook.com/terms.php [https://per
ma.cc/7CZK-D262] (“[Y]ou must . . . [u]se the same name that you use in everyday life.”) A person
might nonetheless provide a false name, of course, but the norm on Facebook is to provide a real
one.
74. See generally Tim Fisher, 6 Best Ways to Use Facebook to Find People Online, L
IFEWIRE
(Apr. 16, 2020), https://www.lifewire.com/ways-you-can-use-facebook-to-find-people-online-348
2276 [https://perma.cc/NU8H-J8GV].
75. See, e.g., Joe Rossignol, Apple to Launch a Global Law Enforcement Web Portal to
Streamline Data Requests by End of 2018, M
ACRUMORS (Sept. 6, 2018), https://www.macrumors
.com/2018/09/06/apple-to-launch-law-enforcement-support-program/ [https://perma.cc/V678-LK
VU].
76. Law Enforcement Online Requests, F
ACEBOOK, https://www.facebook.com/records/login/
[https://perma.cc/EYL5-GV58]; Law Enforcement Request System, G
OOGLE, https://lers.google
.com/signup_v2/landing [https://perma.cc/MKW2-K7ZT].
77. See, e.g., Law Enforcement Request System: Request Access to LERS, G
OOGLE,
https://lers.google.com/signup_v2/requestaccount [https://perma.cc/2FGU-2JCZ] (“To request a
LERS account, enter your official government-issued email address below.”).
78. See Det. James Williams, The Unofficial Guide to Facebook’s Law Enforcement Portal
Version 2, S
ACRAMENTO SHERIFF’S DEP’T, https://netzpolitik.org/wp-upload/2016/08/facebook-
law-enforcement-portal-inofficial-manual.pdf [https://perma.cc/587J-XDD2].
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although some provider privacy policies may require that.
79
It is common,
especially on the federal level, for law enforcement to roughly follow the model
preservation request letter provided in the Justice Department’s search and
seizure manual.
80
Justice Department prosecutors also have access to a standard
form Microsoft Word template that will fill in the appropriate addresses of
providers to help complete the letter.
81
One noteworthy aspect of preservation is the lack of attention to
particularity. A preservation request will often ask the provider to preserve
everything about the account. It will seek the preservation of every record, every
file, and every message associated with the account that the provider can access
from the moment of the account’s creation until the time of preservation. This is
notably different from the scope of a warrant that can be obtained. Warrants
must comply with the Fourth Amendment’s particularity requirement, which
requires probable cause for the items to be disclosed and typically date
restrictions for Internet accounts.
82
Consistent with the view that preservation is
not a significant privacy event, it is generally understood that preservation need
not comply with the particularity requirement. It is therefore common for the
government to preserve very broadly.
C. Following Up on Preservation Requests
After the government has sought preservation, and requested any
extensions, agents will either come back eventually with legal process or else
not follow up and let the preservation lapse. According to the interviews I
conducted, these alternative paths happen roughly equally often. That is, a
ballpark estimate is that the government follows up on preservation requests
with some kind of legal process—whether with a warrant for contents, or less
process for non-content records—only about half the time.
79. The privacy polices do not have the force of law, of course, but investigators will
nonetheless comply with them in order to secure preservation. See, e.g., Safety Center: Information
for Law Enforcement Authorities, F
ACEBOOK, https://www.facebook.com/safety/groups/law
/guidelines/ [https://perma.cc/G6ST-KKXJ].
80. See 2009 DOJ Manual, supra note 33, at 225. See Telephone Interview with Michael Levy,
former Chief for Computer Crimes in the U.S. Attorney’s Office for the Eastern District of
Pennsylvania (Summer 2020).
81. See Telephone Interview with Michael Levy, former Chief for Computer Crimes in the
U.S. Attorney’s Office for the Eastern District of Pennsylvania (Summer 2020).
82. See, e.g., Info. Associated with Four Redacted Gmail Accounts, 371 F. Supp. 3d 843, 844
(D. Or. 2018) (holding warrants for online account held overbroad under the Fourth Amendment
“in light of Google’s ability to date-restrict the emails it discloses to the government.”); In re Search
of Google Email Accounts, 92 F. Supp. 3d 944, 953 (D. Alaska 2015) (denying a warrant
application for a Gmail account as overbroad because it was “not tailored to its narrow probable
cause showing for the limited time periods”). Cf. People v. Coke, 461 P.3d 508, 516 (Colo. 2020)
(finding a warrant for a cell phone violated the particularity requirement because it was not limited
to “the alleged victim or to the time period during which the assault allegedly occurred.”).
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When the government decides that it need not or cannot follow up with legal
process, the government does not provide notice to providers to stop preserving
the account. For example, if investigators conclude that a suspect is completely
innocent, they do not contact the provider and ask it to delete the preserved
contents. The government’s understanding is that no follow-up is needed to
cancel preservation: when the ninety-day period ends, providers will eventually
delete the files on their own.
When the government follows up with legal process, that process can take
the form of a subpoena, a § 2703(d) court order, or a probable cause warrant.
83
The major Internet providers require a search warrant to turn over contents of
communications under Fourth Amendment caselaw.
84
As noted earlier, the
warrant generally will be narrower than the prior preservation request. The
warrant must comply with the particularity clause of the Fourth Amendment and
its evolving standards on remote content accounts, while the preservation is not
understood to be subject to those standards.
It is common for warrant materials that follow preservation orders to make
reference to the preservation order, either in the warrant itself or in a cover letter
or other comment. Investigators include this reference to help providers comply
with warrants. As explained below, executing the warrant may require providers
to either disclose both the preserved contents and the current contents, or else to
patch together material from both.
85
Alerting the provider to the prior
preservation in the warrant can help the provider do that effectively.
D. How Providers Comply with Preservation Requests
Providers execute preservation requests by making a copy of the full
contents of the relevant account and storing it separately. Several providers have
described the process in their public transparency reports. Apple’s transparency
report refers to preservation as “a one-time data pull of the requested existing
user data available at the time of the request” that is then held “for 90 days (up
to 180 days if Apple receives a renewal request).”
86
Twitter’s report refers to
preservation as “a temporary snapshot of the relevant account records” that is
then held “for 90 days pending service of valid legal process.”
87
83. See generally Kerr, supra note 37.
84. See United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (holding that accessing the
contents of e-mails from an Internet service provider requires a warrant under the Fourth
Amendment).
85. See infra Section II Part E..
86. Apple Transparency Report: Government and Private Party Requests, A
PPLE 9 (July–Dec.
2019), https://www.apple.com/legal/transparency/pdf/requests-2019-H2-en.pdf [https://perma.cc
/KT6Q-PPWD].
87. Guidelines for Law Enforcement, T
WITTER, https://help.twitter.com/en/rules-and-policies
/twitter-law-enforcement-support#6 [https://perma.cc/L3CG-WE9A].
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Providers typically implement preservation using a software program
referred to as a “snapshot tool” that copies all of the files and then stores them
elsewhere for later retrieval. At several major providers, preservation is
automatic. The government agent’s request to preserve is carried out by the
software without human intervention. No person reviews the request before it is
implemented. Other major providers retain human review of preservation
requests, requiring a person to review the request and implement it: given the
time-sensitive nature of preservation requests, the human review generally is
given high priority. Human review remains the norm at smaller providers, which
generally lack the large number of requests that would justify creating the
programs to make preservation automatic.
Major providers that automate the preservation processes retain occasional
human review of preservation requests in case abuses or irregularities occur. For
example, a preservation request that seeks preservation of a very large number
of accounts at once may be flagged for review and prompt an inquiry from the
provider seeking a justification. Requests to preserve accounts of public figures
may also prompt review. A request made based on an assigned IP address instead
of an account name may need special review to associate the request with the
correct account. Providers also often watch for preservation requests made
seriatim, such as requests every hour to preserve the same account. The concern
motivating this review is that the § 2703(f) authority is supposed to permit only
a one-time snapshot, rather than ongoing monitoring.
88
Repeated preservation
could in theory amount to a wiretap, which would implicate the civil and
criminal liability of the Wiretap Act.
89
Providers use human review to watch out
for that or other law enforcement strategies that could exceed the permitted
scope of § 2703(f).
90
Providers that have automated the process typically set the preserved
material to delete automatically when the preservation period ends.
91
This was
not the case in the past, however, before the process was widely automated. It
was not uncommon for providers to hold on to preserved contents beyond the
required period: they might set the files aside and simply forget to come back to
88. Cf. 2009 DOJ Manual, supra note 33, at 139.
89. See id. at 140 (Ҥ 2703(f) letters should not be used prospectively to order providers to
preserve records not yet created. If agents want providers to record information about future
electronic communications, they should comply with the electronic surveillance statutes discussed
in Chapter 4 [on the Wiretap Act]”).
90. Apple’s published law enforcement guidelines hint at this role: “An attempt to serve more
than two preservation requests for the same account will result in the second request being treated
as a request for an extension of the original preservation, and not a separate preservation of new
data.” Legal Process Guidelines, A
PPLE, https://www.apple.com/legal/privacy/law-enforcement-
guidelines-us.pdf [https://perma.cc/X5DS-B3K5].
91. If a renewal request is made, it must be made in time for the provider to process it before
the initial 90-day period elapses and the contents are deleted. See, e.g., Apple Transparency Report:
Government and Private Party Requests, supra note 85, at 9.
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delete them. This could result in preservation beyond the statutory window, such
as the ninth-month preservation period in United States v. Basey involving
preservation that occurred in 2014.
92
Providers also occasionally extend preservation beyond the statutory
requirement as a courtesy to governments. Twitter’s transparency report
identifies a representative circumstance when this can occur. Although the
statute only requires preservation for two ninety-day periods, the report explains
that Twitter “may process multiple extension requests if requesters represent that
they are engaged in a process for international cooperation (i.e., MLAT or letters
rogatory), given these processes can take several months.”
93
Providers also
routinely preserve accounts in response to requests received directly from
foreign governments,
94
although it is not required by § 2703(f).
95
Preservation
directly from foreign governments raises no Fourth Amendment issues because
foreign governments are not state actors for Fourth Amendment purposes.
96
Further, the practical relevance of preservation for foreign governments is
somewhat limited in the case of contents because disclosure is ordinarily
prohibited unless a domestic warrant has been obtained.
97
E. The Impact of Preservation on Subsequent Disclosure
After a provider has preserved an account, the government may come back
with legal process seeking disclosure. In some cases, the government will seek
disclosure only of non-content records such as basic subscriber information or
e-mail headers without subject lines. The government can generally obtain non-
content records with less process than a search warrant, such as a subpoena or a
92. In Basey, the government sent a preservation letter on February 7, 2014, and followed up
with a search warrant on November 11, 2014. See ACLU Basey Brief supra note 24.
93. Information Requests, T
WITTER, https://transparency.twitter.com/en/reports/information-
requests.html#2019-jul-dec [https://perma.cc/F6KD-JJZD].
94. This practice is detailed in transparency reports, which often break down preservation
requests by country. See, e.g., Apple Transparency Report: Government and Private Party
Requests, supra note 85, at 22. Preservation requests listed as coming from other countries are
generally going to be for preservation requests made under the law of those countries. If a foreign
government works with U.S. authorities under an MLAT and the US authority submits a
preservation request, that would be listed as a United States preservation. Or it might be both: It is
common for requests involving mutual legal assistance to come both from the foreign government
and from either the Justice Department’s Office of Internal Affairs or the FBI’s MLAT unit.
95. A foreign government cannot make a request under § 2703(f) because the statute only
applies to requests from governmental entities, which means only federal, state, and local
governments. See 18 U.S.C. § 2703(f)(1); 18 U.S.C. § 2711(4).
96. See, e.g., United States v. Olaniyi, 796 F. App’x. 601, 603 (11th Cir. 2019).
97. See Orin S. Kerr, The Next Generation Communications Privacy Act, 162 U.
PA. L. REV.
373, 409–10 (2014). The new provisions of the Cloud Act likely will change that in coming years,
as the Cloud Act will permit disclosure pursuant to foreign warrants of qualifying foreign
governments. See generally O
RIN S. KERR, 2021 CASELAW AND STATUTORY SUPPLEMENT FOR
COMPUTER CRIME LAW 102–05 (2020) (explaining the relevant provisions of the Cloud Act).
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§ 2703(d) order, as is expressly permitted by the SCA
98
and (with an exception
for cell-site location information) by Fourth Amendment law.
99
When the
government follows up a preservation request with legal process for unprotected
non-content records, the provider may nonetheless retain the preserved account
records for the remainder of the ninety-day period in case the government returns
with more legal process such as a warrant for contents.
Matters are more complicated when the government follows up a
preservation request with the search warrant generally required to compel
disclosure of contents under the Fourth Amendment and the SCA.
100
The
government generally obtains a two-stage warrant that divides the work of
culling the information sought in the warrant between the provider and
investigators.
101
At the first stage, the provider will gather the relevant kind of
files sought by the warrant, subject to the date restrictions typically found in the
warrant, and will produce that set of files to the government.
102
At the second
stage, government investigators will search through those produced files and
separate out the contents relevant to the crime as specifically described in the
warrant.
103
Preservation can play an important role in production under this two-stage
approach because the combination of preservation under § 2703(f) and
subsequent search warrant compelling disclosure under § 2703(a) results in the
provider possessing two copies of the account contents. The first copy is made
at the time of the preservation request in response to that request. We can call
this the preservation copy. The second copy is made when the provider receives
a warrant. At that stage, the provider will make a second copy of the account
and prepare that for winnowing and disclosure. We can call this the warrant
copy.
The existence of two copies of the account complicates how providers help
execute Internet search warrants because the contents to be turned over in
response to the warrant may be spread between the two copies. Each copy may
have responsive contents that the other copy lacks. The preservation copy may
have files that the user deleted by the time of the warrant copy. The warrant copy
may have files made after the creation of the preservation copy. In addition, the
two copies will often have different scope because the government typically will
preserve broadly but obtain warrants more narrowly. While initial preservation
98. See 18 U.S.C. § 2703(c).
99. See L
AFAVE, supra note 54, at § 4.4 (summarizing Fourth Amendment caselaw as applied
to the Internet).
100. See generally 18 U.S.C. § 2703(a); United States v. Warshak, 631 F.3d 266, 282 (6th Cir.
2010).
101. This procedure has been widely approved in the caselaw. See, e.g., In the Matter of Search
of Information Associated with [redacted]@mac.com, 13 F. Supp. 3d 157, 162, 164 (D.D.C. 2014).
102. See id. at 160–62 (describing the two-step procedure).
103. See id.
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will typically cover the entire account, a subsequent warrant is likely to be
significantly narrower to satisfy the Fourth Amendment’s particularity
requirement.
A hypothetical example can show how preservation often complicates the
provider’s task of complying with Internet content warrants. Imagine
investigators send a request in June that seeks preservation of an entire
account— all contents and all non-content records— up to that date. In response,
the provider generates and stores the preservation copy. Over the next few
months, the government investigates the crime and develops probable cause. In
September, the government obtains a warrant and serves it on the provider. The
warrant is narrower than the preservation request. It requires the provider to turn
over only the contents of private messages from the account during the window
of probable cause—say, from January through August. The provider will
respond to the warrant by creating the warrant copy, which consists only of
private messages from January through August that existed in the account when
the warrant was received in September.
The provider can produce these contents in compliance with the warrant in
two ways. The easier path is for the provider to send the government two
productions. The provider will produce the warrant copy, as filtered down to
satisfy the date restriction and file types sought; and it will also produce the
preservation copy, as filtered down by the same conditions. In my example, the
warrant copy will contain the private messages from January through August
that existed in the account in September when the warrant was served. The
preservation copy will have the private messages from January through June that
existed in June when the account was preserved. The provider will send the
government both productions, which are likely to overlap significantly. The
government can them look through either or both copies for the evidence as it
executes stage two of the warrant.
The more difficult way for the provider to execute stage one of the warrant
is to do the extra work of going through the two copies and patching them
together into a single production. In that case, the provider will start by filtering
down both the preservation copy and the warrant copy to the correct date
windows and file types, compare the resulting data sets, remove duplicates, and
combine them. The result is a curated and combined data set that is sent on to
the government as “the account” in compliance with its duty to execute stage
one of the warrant.
F. Lack of Notice to Users
A final point to consider in the § 2703(f) process is the lack of notice to
users. The entire process is largely hidden from users and their counsel.
Providers do not notify users about preservation. And when the government
obtains a warrant and later brings charges, it ordinarily does not notify users that
a preservation previously occurred. Preservation is hidden not because it is
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considered controversial. To the contrary, it is hidden primarily because it is not
considered significant enough to disclose.
The provider’s practice not to notify users about preservation reflects a
policy choice. The SCA authorizes the government to obtain court orders in
some circumstances that prohibit providers from notifying anyone that “a
warrant, subpoena, or court order” was obtained.
104
But the statute does not
apply to preservation requests, as they are not warrants, subpoenas, or court
orders. The Justice Department’s sample preservation letter includes language
asking the provider not to provide notice of the preservation, but that request has
no legal force.
105
Whether providers disclose preservation, and at what stage, is
entirely up to them.
Providers do not notify users of preservation for two reasons. The most
important reason is that they do not consider preservation to be a privacy event.
If the government preserves an account but never follows up with a warrant, the
thinking runs, the extra copy of the account will be deleted eventually. In the
end, the preservation will have had zero consequence. On the other hand, if the
government follows up with a warrant that compels disclosure, users normally
will be notified of the disclosure pursuant to the providers’ privacy policies
assuming no non-disclosure order has been obtained. Either way, providers
reason, the prior preservation is not significant enough to justify notifying the
user.
A second reason providers do not notify users is the perceived
administrative burden of notification. If providers notify users of preservation,
they might deem it proper to provide notice in some cases but not in other cases.
But when a provider decides that a particular preservation justified notice, it
would, as a courtesy to the government, defer to the government’s preference
between having preservation with notice or no preservation at all.
106
This could
104. 18 U.S.C. § 2705(b). The statute states in relevant part:
A governmental entity acting under section 2703 . . . 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.
Id. This provision is the subject of considerable First Amendment litigation. See, e.g., L
AFAVE,
supra note 54, at § 4.8 (summarizing litigation).
105. The sample language in the 2009 DOJ Manual states:
I request that you not disclose the existence of this request to the subscriber or any other
person, other than as necessary to comply with this request. If compliance with this request
might result in a permanent or temporary termination of service to the Account, or otherwise
alert any user of the Account as to your actions to preserve the information described below,
please contact me as soon as possible and before taking action.
2009 DOJ Manual, supra note 33, at 225.
106. The Justice Department’s sample language for a preservation request reflects this concern:
“If compliance with this request might result in a permanent or temporary termination of service to
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be resource-intensive, as both sides would need to sort out their notice
preferences in each case. Providers can simply bypass this time-consuming
process by not notifying users about preservation.
A second stage of notice issues arises if criminal charges are eventually
brought and the evidence against the defendant includes preserved content that
was later disclosed pursuant to a warrant. At that stage, the question is whether
the government will notify the defense of the earlier preservation. The ordinary
practice is for the government not to provide such notice. Prosecutors have
discovery obligations, of course. In some jurisdictions, those obligations will
require disclosing information relevant to the filing of a Fourth Amendment
motion to suppress—an obligation that might variously be based on Brady v.
Maryland,
107
local rules,
108
agency standards,
109
the Fourth Amendment
itself,
110
or other sources.
111
Despite this obligation, prosecutors ordinarily do
not notify defense counsel of prior preservation based on the belief that
preservation does not raise any Fourth Amendment issues.
112
Because the §
2703(f) process is thought to operate outside the Fourth Amendment,
prosecutors do not think to include notice of preservation in discovery.
The primary exception to this non-disclosure practice is the
acknowledgment of preservation through reference in search warrants turned
over to the defense. Warrants to compel contents under 18 U.S.C. § 2703(a) may
the Account, or otherwise alert any user of the Account as to your actions to preserve the
information described below, please contact me as soon as possible and before taking action.” Id.
107. 373 U.S. 83, 87 (1963). There is some authority that “the suppression of material
information can violate due process under Brady if it affects the success of a defendant’s pretrial
suppression motion.” Biles v. United States, 101 A.3d 1012, 1020 (D.C. 2014). The matter is not
firmly established, however. Compare id. at 1029–31 (Thompson, J., concurring) (arguing that
Brady only covers evidence that is exculpatory or impeaching, and that it does not include material
that is relevant to a motion to suppress).
108. See, e.g., D. Mass., L.R. 116.2(a) (June 1, 2018) (defining exculpatory information that
must be disclosed by the government to include “information that tends to . . . cast doubt on the
admissibility of evidence that the government anticipates offering in its case-in-chief.”).
109. U.S. DEP’T OF JUST., The Justice Manual § 9–5.001.C.2 (requiring disclosure of
information that “might have a significant bearing on the admissibility of prosecution evidence”).
110. See Orin Kerr, Did the Ninth Circuit Create a New Fourth Amendment Notice Requirement
for Surveillance Practices?, L
AWFARE (Sept. 9, 2020, 7:01 AM), https://www.lawfareblog
.com/did-ninth-circuit-create-new-fourth-amendment-notice-requirement-surveillance-practices
[https://perma.cc/RQS3-ZURC] (discussing the constitutional notice requirements apparently
introduced by United States v. Moalin, 973 F.3d 977 (9th Cir. 2020)).
111. See, e.g., S
TANDARDS FOR CRIM. JUST. DISCOVERY § 11-2.1(c) (AM. BAR ASS’N 2020)
(“[T]he prosecutor should disclose to the defense . . . [a]ny information, documents, or other
materials relating to any governmental electronic surveillance of the defendant’s person,
communications, possessions, activities, or premises, or to legal authorization of the surveillance,
that pertains to the case.”). Notably, there is no requirement of notice that the warrant was obtained
if charges are not brought. See id.
112. See Telephone Interview with Michael Levy, former Chief for Computer Crimes in the
U.S. Attorney’s Office for the Eastern District of Pennsylvania (Summer 2020).
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mention the fact of prior preservation to help the provider comply fully with the
warrant. When the government discloses the warrant materials to defense
counsel as part of its discovery obligations, alert defense counsel might notice a
reference to prior preservation. But this requires careful scrutiny by the defense
and awareness of the workings of § 2703(f). The fact of preservation is otherwise
generally hidden from defendants.
III.
CONTENT PRESERVATION IS A FOURTH AMENDMENT SEIZURE
Having studied the preservation statute and explored current practices, we
turn finally to Fourth Amendment law. This Section considers the threshold
Fourth Amendment question: does content preservation under § 2703(f) cause a
Fourth Amendment seizure? This Section argues that it does. When a provider
preserves contents pursuant to a government request, the provider’s act of
copying and saving the contents of the account is a Fourth Amendment seizure.
That seizure must then be analyzed for its constitutional reasonableness, which
is the subject of Section IV.
This Section has three Parts. It starts by explaining why provider
preservation in response to a preservation request is government action that the
Fourth Amendment regulates. The provider acts as the government’s agent in
response to government compulsion, making its acts attributable to the
government. The analysis then explains why that government action amounts to
a seizure under the Fourth Amendment. Preservation interferes with the account
holder’s possessory interest by transferring control of personal communications
to the government.
Finally, this Section responds to the core argument of those who see no
Fourth Amendment concerns with preservation, namely, the “no harm, no foul”
claim. According to this view, Fourth Amendment law need not consider
preservation because it is merely anticipatory. Preservation, it is argued, has no
effects of its own. But that argument is flawed. Preservation surrenders a
person’s control over their most private communication. That is a classic Fourth
Amendment harm at the core of the constitutional limit on government seizures.
An important limitation is worth flagging here. My argument is limited to
the preservation of stored contents, such as e-mails, instant messages, pictures,
attachments, and other remotely stored files. It does not apply to non-content
records, such as login records or basic subscriber information. I draw this
distinction because users generally have Fourth Amendment rights in their
stored contents but generally have no Fourth Amendment rights in their non-
content records.
113
The known category of non-content records that crosses this
line, cell-site location records, presents its own issues that may require its own
113. See LAFAVE, supra note 54, at § 4.4.
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preservation analysis.
114
The analysis here concerns preservation only of
contents.
A. Content Preservation is Government Action
The first step in my argument is establishing that content preservation under
§ 2703(f) is government action regulated by the Fourth Amendment and not
private action outside it. This is straightforward. Content preservation is
government action because it occurs in response to a government command.
Let’s go back to first principles. The Fourth Amendment applies to acts of
private individuals acting as “instrument[s] or agent[s]” of the Government.
115
“Whether a private party should be deemed an agent or instrument of the
Government for Fourth Amendment purposes necessarily turns on the degree of
the Government’s participation in the private party’s activities.”
116
The easiest
case for agency is when the government has “compelled a private party to
perform a search.”
117
But compulsion isn’t required.
118
The main question is,
was the private party acting “on his own initiative,” or was the private party
acting pursuant to the “encouragement, endorsement, and participation” of the
government?
119
Content preservation in response to a § 2703(f) letter readily satisfies the
Fourth Amendment test for state action. When the government makes a
§ 2703(f) request, the government is directly compelling the private party to act.
“[U]pon the request of a governmental entity,” the law states, the provider “shall
take all necessary steps to preserve records and other evidence” in its
possession.
120
The records “shall be retained for a period of 90 days, which shall
be extended for an additional 90-day period upon a renewed request by the
governmental entity.”
121
The government directs, and the law requires the
provider to act as the government’s agent.
Commonwealth v. Gumkowski shows how provider preservation under this
scheme counts as state action.
122
In Gumkowski, the service provider Sprint was
approached by a state trooper who requested emergency assistance in a murder
114. A wrinkle with applying these principles to cell-site location records is that users generally
don’t know that the records exist and cannot control them. It is not clear to me how the Fourth
Amendment seizure test might apply to copying records that a person cannot control and does not
know exists.
115. Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971).
116. Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 613–614 (1989).
117. Id. at 614.
118. See id. (noting that absence of compulsion “does not, by itself, establish that the search is
a private one.”).
119. Id. at 613–614.
120. 18 U.S.C. § 2703(f) (emphasis added).
121. Id. (emphasis added).
122. 167 N.E.3d 803, 812 (Mass. 2021).
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investigation.
123
The state trooper asked Sprint to disclose a suspect’s cell-site
location records without a warrant.
124
The SCA permits a provider to disclose
records to the government at its discretion if, “in good faith,” it “believes that an
emergency involving danger of death or serious physical injury to any person
requires disclosure without delay of information relating to the emergency.”
125
Sprint opted to reveal the records under that standard. The Massachusetts
Supreme Judicial Court later ruled that Sprint’s response to the state trooper’s
request was Fourth Amendment state action: “if law enforcement instigates the
search by contacting the cell phone company to request information, there is
State action. That Sprint could have refused to provide records in response to
[the state trooper’s] request does not change the fact that he instigated the
search.”
126
Caselaw from the physical world advances the point. In United States v.
Hardin, the government asked an apartment building manager to enter a specific
apartment in his building to see if the defendant, who had a warrant out for his
arrest, was inside.
127
The apartment manager agreed, and he went to that
apartment and used his key to enter.
128
After entering the apartment, the manager
confirmed the defendant was inside and relayed that information to the police.
129
The Sixth Circuit ruled that the apartment manager was a state actor for Fourth
Amendment purposes.
130
“[T]he manager was acting as an agent of the
government” under the Fourth Amendment, according to the court, “because the
officers urged the apartment manager to investigate and enter the apartment, and
the manager, independent of his interaction with the officers, had no reason or
duty to enter the apartment.”
131
Under Gumkowski and Hardin, Internet providers following § 2703(f) will
count as state actors. Like Sprint in Gumkowski, and the building manager in
Hardin, an Internet provider that receives a preservation notice is acting to help
the government. The government instigates the process, and the provider follows
the government’s direction. Of course, a provider (or a building manager) can
act on its own and remain a private actor.
132
But when the government
approaches a provider and asks it to act for the government, a complying
123. See id. at 808–10.
124. See id. at 810 n.6.
125. 18 U.S.C. § 2702(c)(4).
126. Gumkowski, 167 N.E.3d at 812.
127. 539 F.3d 404, 407 (6th Cir. 2008).
128. Id.
129. Id. at 407–08.
130. Id. at 420.
131. Id.
132. See, e.g., United States v. Adkinson, 916 F.3d 605, 610 (7th Cir. 2019) (per curiam)
(holding that T-Mobile was a private actor when it investigated robberies of its own stores,
conducted a tower dump of T-Mobile phones in the area to identify a suspect, and then turned the
information over to the government).
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provider is a state actor. If anything, the case for state action is clearer with
preservation because § 2703(f) is mandatory. The provider in Gumkowski and
the manager in Hardin volunteered to follow the government’s request. It was
their choice. In contrast, § 2703(f) gives providers no choice but to comply.
Although the remedy for violations is unclear,
133
the statute is phrased as a direct
command: the provider “shall take all necessary steps to preserve records and
other evidence” for the government.
134
This conclusion is particularly straightforward when providers automate the
preservation process. As previously explained in Section II, some major
providers directly automate preservation. To preserve an account, the
government accesses the provider’s portal and fills out an online form.
Submission of the form directly carries out the preservation without human
intervention. Although the provider has designed and built the tool, the
government uses it. The state action is obvious. The same principle should apply
when the provider has not automated the process and requires a person working
for the provider to carry out the preservation process. Whether or not the
provider has decided to automate, the process is a government-mandated process
which constitutes state action under the Fourth Amendment.
135
The government argued in Basey that preservation under § 2703(f) does not
trigger government action because preservation merely requires a provider to
keep a record it already has in its possession.
136
“[W]hen a party complies with
a legal duty to preserve information in its possession,” the government reasoned,
“it does not become a government agent.”
137
The government relied on
California Bankers Ass’n v. Shultz,
138
a case involving a challenge to regulations
requiring banks to maintain certain business records. In response to the claim
that the record-keeping made the banks agents of the government, the Court
disagreed, stating that “[s]uch recordkeeping requirements are scarcely a
novelty.”
139
According to the government, the principle of Shultz covers
preservation.
140
I disagree for two reasons. First, the government’s argument fails to grapple
with the reality of the preservation process. As Section II showed, providers do
not comply with § 2703(f) requests by simply keeping a record that they already
133. See Section I, Part C.
134. 18 U.S.C. § 2703(f)(1) (emphasis added).
135. Cf. Smith v. Maryland, 442 U.S. 735, 744–45 (1979) (“We are not inclined to hold that a
different constitutional result is required because the telephone company has decided to
automate.”).
136. See Appellee’s Answering Brief, United States v. Basey, No.18-30121 (9th Cir. Aug. 14,
2019) [hereinafter DOJ Basey Brief].
137. Id. at 20–21.
138. 416 U.S. 21, 25 (1974).
139. Id. at 45.
140. See DOJ Basey Brief, supra note 130, at 20–21.
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have. True, the process is labeled “preservation.” But what actually happens
behind the scenes is a dynamic process of entry, copying, and storage. Providers
preserve a user’s account by going into the account, using a snapshot program
to copy the records, and putting the copy aside for the government.
141
This is
closely akin to Sprint’s response in Gumkowski and the manager’s entry in
Hardin. Indeed, the process closely resembles the process of complying with
legal process, except that the very last step of disclosure is missing. Just as a
provider is a state actor when it executes a search warrant for Internet
contents,
142
so is a provider a state actor when it conducts preservation.
Second, the government’s reliance on Shultz is misplaced. Nothing in Shultz
sheds light on whether preservation triggers Fourth Amendment state action. In
Shultz, banks had argued that their Due Process rights were violated by the
“unreasonable burdens” imposed on them by bank recordkeeping requirements
about certain suspect kinds of financial transactions.
143
The burdens were
unreasonable, the banks argued, “by seeking to make the banks the agents of the
Government in surveillance of its citizens.”
144
The Court rejected the claim that
the regulatory burden was so unreasonable as to violate Due Process by noting
that such burdens were common—“scarcely a novelty”
145
—and that
recordkeeping requirements were far lesser burdens than other regulatory
approaches that were clearly lawful.
146
Nothing in this reasoning or conclusion
helps identify who is a Fourth Amendment state actor.
B. Content Preservation Is a Seizure
The next step is establishing that preservation constitutes a Fourth
Amendment seizure. As noted earlier, I made this argument in depth in a prior
article, Fourth Amendment Seizures of Computer Data.
147
I will offer only a
brief summary here. In that article, I contended that “copying data ‘seizes’ it
under the Fourth Amendment when copying occurs without human observation
and interrupts the course of the data’s possession or transmission.”
148
I used e-
mail preservation under § 2703(f) as an example of a data seizure: “a
government request to an ISP to make a copy of a suspect’s remotely stored files
141. See supra Section II.
142. See In the Matter of Warrant to Search a Certain E-Mail Account Controlled and
Maintained by Microsoft Corporation, 829 F.3d 197, 214 (2d Cir. 2016), vacated as moot, United
States v. Microsoft, 138 S. Ct. 1186 (2018).
143. Shultz, 416 U.S. at 45.
144. Id.
145. Id.
146. Id. at 46–47.
147. Kerr, supra note 20, at 700.
148. Id. at 703.
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and to hold it while the government obtains a warrant would also constitute a
seizure.”
149
The starting point for this conclusion is United States v. Jacobsen, which
states that property is seized “when there is some meaningful interference with
an individual’s possessory interests in that property.”
150
Whether copying data
is a seizure raises a conceptual puzzle because copying creates additional copies.
Does the meaningful interference with the possessory interest occur only when
a person loses control of the original? Or does meaningful interference also
occur when the person loses control of copies the government has made?
151
Put
another way, if the government makes a copy but leaves the suspect with the
original, has the data been seized because the government has gained a copy of
the information? Or has no seizure occurred because the suspect has not lost
access to the original?
The answer to this puzzle should be that copying data for later government
use constitutes a seizure. The essence of the seizure power is taking government
control.
152
Copying constitutionally protected data achieves that: “In a world of
data, whether an individual has access to a particular copy of her data has much
less significance than whether the government has obtained a copy of the data
for possible government use in the future.”
153
Losing access to a particular copy
of data can be an inconvenience, to be sure. But what matters in a data
environment is whether the government has private data at its disposal. In a
digital environment, data “reigns supreme. Government control of data provides
the link that empowers the prosecution to charge people with crimes that will
take away their freedom.”
154
When a government agent collects constitutionally
protected data and sets it aside for possible access, the government has seized
the data under the Fourth Amendment.
Courts have generally assumed this result to be correct, although express
holdings about this issue are rare.
155
The point is perhaps most easily shown by
comparison to the warrant process under 18 U.S.C. § 2703(a) for compelling
contents held by Internet providers. When the government serves a warrant on a
149. Id. at 723–24.
150. 466 U.S. 109, 113 (1984).
151. Kerr, supra note 20, at 704–09.
152. Id. at 711.
153. Id. at 712.
154. Id. at 713.
155. Courts have widely assumed this result in the copying of digital media on a suspect’s
physical device, such as a laptop, cell phone, thumb drive to later search it. The Second Circuit
expressly held this in a panel decision that was later vacated on rehearing en banc. See United States
v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014) (holding that the Government’s retention of electronic
copies of the defendant’s personal computer “deprived him of exclusive control over those files,”
which was “a meaningful interference with [the defendant’s] possessory rights in those files and
constituted a seizure within the meaning of the Fourth Amendment.”), vacated, United States v.
Ganias, 824 F.3d 199 (2d Cir. 2016) (en banc).
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provider that requires disclosure of account contents, courts have generally
assumed (and occasionally have expressly held)
156
that the copying of contents
that precedes disclosure to the government is a “seizure.”
157
The similarity
between executing an Internet warrant under § 2703(a) and content preservation
under § 2703(f) requires the same result for both. The process is the same except
for the last step. When preservation occurs, the information is copied and set
aside, just as it would be for a warrant. It is just not (yet) disclosed. If copying
contents and setting aside the new copy for the government is a seizure when the
government executes a warrant, it is not less a seizure when the government
orders preservation.
C. The Problem With “No Harm, No Foul”
The main counterargument to my conclusion that preservation triggers a
Fourth Amendment seizure asks if this is simply ‘no harm, no foul.’ That is,
should the law of preservation reflect the principle of de minimis non curat lex—
that the law does not bother with trifles?
158
After all, preservation of contents is
only a preliminary step. The provider holds files securely and does not turn them
over unless the government has a warrant. No one other than the provider and
the government will know that preservation even occurred. Given that the user
retains access to his files, one might ask, what exactly is the harm if the
government directs a copy to be made and saved without disclosure?
But there is a harm. It’s a harm at the core of the seizure power: Loss of
control. Users ordinarily control the contents of their private accounts. They can
decide to create private content. They can decide to store it. And just as users
are free to decide what ideas they will write, what pictures they will take, and
what communications they will save, they are also free to undo those choices by
deleting those files in their accounts—or even to delete their accounts altogether.
Ordinarily, users can make their online accounts their virtual homes, filled with
156. Search of Info. Assoc. with [Redacted]@Mac.Com, 25 F. Supp. 3d 1, 7 (D.D.C. 2014)
(Facciola, MJ) (“Even if, as Professor Orin Kerr has stated, a search does not occur until the data
is exposed to possible human observation . . . the seizure of a potentially massive amount of data
without probable cause has still occurred—and the end result is that the government has in its
possession information to which it has no right.”).
157. In speaking of how SCA warrants are obtained, courts have spoken of the process of
copying the contents of the account as the part of the warrant that is a seizure. See, e.g., United
States v. Bowen. 689 F. Supp. 2d 675, 684 (S.D.N.Y. 2010) (“[T]he Defendants’ enterprise was so
pervaded with criminal activity, and the target e-mail accounts were such essential instrumentalities
of that enterprise, that seizure of the entire account was appropriately authorized pursuant to the all
records exception.”) (emphasis added).
158. It is not clear that this principle applies to Fourth Amendment claims, but this Section
assumes that it does for purposes of replying to it. Compare Hessel v. O’Hearn, 977 F.2d 299, 299
(7th Cir. 1992) (considering the doctrine of de minimis non curat lex as applied to a Fourth
Amendment claim) with Arizona v. Hicks, 480 U.S. 321, 321 (1987) (“A search is a search, even
if it happens to disclose nothing but the bottom of a turntable.”).
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as many or as few of their private thoughts, private pictures, and personal videos
as they wish. They control the accounts, what is in them, and whether to have
them.
Preservation eliminates that control. Users who want to delete a private
message will think they can delete it. Users who want to delete their entire
account will think it is gone. But when contents are preserved, users can’t do
that. The entire world of their private messages will already be secretly saved
and set aside for the government at its whim. Preservation makes creation of
contents a one-way street. You can decide to create and remotely save your
contents, but you can’t decide to undo that. What a person chooses to save is no
longer under their control. The government can at any time take that control
away by issuing a preservation request that freezes the full scope of a person’s
online life today and sets it aside for possible government access tomorrow.
Reasonable people can disagree about how much harm this triggers. To
some, it may be creeping Big Brotherism—a step toward a world where the
government can store for later access every electronic thought a person has ever
had. To others, it may only be a small afront, as the data still will be disclosed
only with a warrant. But whichever side one falls on, the copying counts as some
kind of Fourth Amendment seizure. The government takes control of a person’s
online world that a person wanted to delete, and secretly holds it just in case a
reason to access it later emerges. This is a seizure, and the question becomes
when that seizure is constitutionally reasonable. The next Section takes on that
question.
IV.
THE REASONABLENESS OF PRESERVATION SEIZURES
This Section considers when preservation is reasonable under the Fourth
Amendment. The Supreme Court has explained that the reasonableness of a
warrantless seizure breaks down into two questions. First, was the seizure
“justified at its inception”?
159
Second, was it “reasonably related in scope to the
circumstances which justified the interference in the first place”?
160
Applying
this framework to preservation focuses the analysis on two questions. First, how
much cause is needed to initiate preservation? And second, how long can
preservation go on?
The Section offers the following answers. First, a preservation request
ordinarily will require at least reasonable suspicion—and in most cases probable
cause—at the outset. This conclusion follows from the large body of caselaw
about temporary seizures of physical items such as computers, packages, and
mail. Reasonable suspicion is generally sufficient for a brief investigatory hold
of property, normally on the order of minutes or hours, to investigate criminal
159. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 185 (2004) (quoting United States v.
Sharpe, 470 U. S. 675, 682 (1985)).
160. Id.
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activity. Probable cause is generally required for a longer detention, on the order
of days, allowing the officers time to obtain a search warrant authorizing the
property to be searched. These principles should also apply to digital seizures of
stored Internet contents.
Second, how long preservation can last depends on whether the basis of the
preservation is reasonable suspicion or probable cause. Preservation based on
reasonable suspicion will be rare and must be very brief, making it far less
consequential in practice than preservation based on probable cause. When the
initial preservation is justified by probable cause, it can extend for a considerable
period of time—on the order of several weeks, and perhaps months—before a
warrant is obtained.
This Section proceeds in six Parts. First, it explains how preservation fits
within existing doctrine about temporary warrantless seizures pending further
investigation. Second, it explores the caselaw allowing brief seizures based on
reasonable suspicion. Third, it considers precedents on temporary warrantless
seizures. The fourth Part puts the pieces together, explaining why preservation
should require at least reasonable suspicion and, in most cases, will require
probable cause. The next Part explains the flaws in the government’s contrary
position that preservation does not require cause. The Section concludes by
considering how long preservation can extend.
A. Preservation and the General Problem of Temporary Warrantless
Seizures Pending Further Investigation
It helps to start by identifying the general problem. Government agents often
hold a person’s property temporarily while they conduct a criminal investigation
or seek a warrant to search the property. This temporary holding allows the
government to control the property and prevent its disappearance or destruction.
Under the Fourth Amendment, the temporary warrantless seizure of the person’s
property must be “justified at its inception,” which requires sufficient reason to
believe that the property contains evidence.
161
An early example of the genre is United States v. Van Leeuwen, a case
involving the temporary detention of two suspicious packages being sent
through the postal mail.
162
Acting on a belief that the packages contained
illegally imported coins, officials detained the packages and prevented their
delivery for twenty-nine hours.
163
During that time, officials conducted an
investigation, developed probable cause, and obtained a warrant to search
them.
164
Searching the packages revealed the coins inside and led to charges.
165
161. Id.
162. 397 U.S. 249, 249 (1970).
163. Id. at 250.
164. Id.
165. Id.
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The defendant claimed that temporarily detaining the packages violated his
Fourth Amendment rights, but the Supreme Court unanimously disagreed.
166
Based on “the facts of this case,” the Court ruled, a “29-hour delay between the
mailings and the service of the warrant cannot be said to be unreasonable within
the meaning of the Fourth Amendment.”
167
Van Leeuwen is just one example of a recurring dynamic. Evidence can be
located inside many different containers. It may be helpful for law enforcement
to hold on to those containers temporarily—ensuring later government access to
them and protecting them from outside interference—while agents investigate
and obtain a warrant permitting a search. Investigators might hold on to
packages sent through the mail, as in Van Leewen.
168
Or the government might
hold on to a suspect’s luggage, as in United States v. Place.
169
They might hold
on to a suspect’s personal computer, as in United States v. Mitchell.
170
They
might even hold on to an entire house, as in Illinois v. McArthur, where the
police prevented a person from entering his home for two hours while they
obtained a warrant to search it.
171
In all of these cases, agents seized the property
temporarily without a warrant in anticipation of obtaining one. The initial seizure
can be permitted, the courts say, by sufficient suspicion that the property
contains evidence.
In my view, preservation under § 2703(f) presents a new variation of this
traditional problem. When the government submits a preservation request, it
directs a temporary seizure of a suspect’s property without a warrant. The
seizure is designed to prevent the suspect from destroying the evidence that the
property may contain. The seizure takes control of the property and sets it aside
for later government access with a warrant that permits the property to be
searched. Both with physical property and with digital contents, the warrantless
seizure of property must be justified by sufficient cause to satisfy Fourth
Amendment reasonableness.
To draw the analogy more directly, Internet contents copied and set aside
under § 2703(f) are like the suspicious packages detained in Van Leeuwen. A
snapshot of a suspicious account is a virtual container much like Van Leeuwen’s
physical containers. The virtual container stores a world of personal messages,
e-mails, photographs, videos, and other personal contents, just like a physical
container might contain stolen items or illegal drugs. Seizing the container sets
it aside unopened unless the government has a search warrant that justifies
opening it. The parallels between physical and virtual containers suggest that
166. Id. at 253.
167. United States v. Van Leewen, 397 U.S. 249, 253 (1970).
168. See id.
169. 462 U.S. 696 (1983).
170. 565 F.3d 1347 (11th Cir. 2009) (per curiam).
171. 531 U.S. 326, 328 (2001).
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roughly similar Fourth Amendment standards should apply. Seizing a virtual
container must satisfy the Fourth Amendment reasonableness standard much
like seizing physical containers did in Van Leeuwen.
Of course, one important fact distinguishes detaining a physical container
from preserving Internet contents: physical containers cannot be copied. When
the government seizes a physical container, it prevents the possessor from
having access to it. In contrast, copying a virtual container deprives its possessor
of information control without eliminating access to the possessor’s copy. When
contents are held remotely, as is the case under § 2703(f), the copying occurs in
secret if no notice is provided. The owner of the property will not realize he has
lost exclusive control. The question is how these factual differences alter the
reasonableness calculus in the context of Internet content preservation.
To answer that, we need to study two types of seizures recognized in the
caselaw. First, when the government has reasonable suspicion that the property
contains evidence, it generally can conduct a brief investigatory hold—normally
on the order of minutes or hours—to investigate criminal activity. This is the
familiar Terry stop applied to property.
172
Second, when the government has
probable cause to believe property contains evidence, the government can seize
the property for “a reasonable amount of time”
173
—typically days or possibly
weeks—while it applies for and obtains a warrant. With these two kinds of
seizures explained, we can then consider how the switch from physical to virtual
seizures should alter the reasonableness balance.
B. Reasonable Suspicion Traditionally Permits a Very Brief Detention to
Investigate
The first kind of temporary warrantless seizures are brief investigatory holds
of property based only on reasonable suspicion. Courts have allowed brief
seizures of property, generally on the order of minutes or hours, to enable
investigators to pause the scene and attempt to gather probable cause that might
justify further action.
The leading case is United States v. Place.
174
In Place, officers temporarily
detained luggage belonging to a suspected drug courier who had just arrived on
a flight from Miami.
175
After holding the luggage for ninety minutes, the officers
brought in a drug-sniffing dog. The dog alerted for the presence of drugs inside
the smaller of the two bags.
176
Because it was late on a Friday afternoon, agents
172. See generally Terry v. Ohio, 392 U.S. 1, 1 (1968).
173. Illinois v. McArthur, 531 U.S. 326, 334 (2001).
174. 462 U.S. 696, 697 (1983).
175. Id. at 698–699.
176. Id. at 699.
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held the luggage over the weekend and obtained a warrant to search the smaller
bag on Monday morning.
177
The search revealed over a kilogram of cocaine.
178
Place addressed two questions. First, could a temporary detention of
luggage be permitted at all based on less than probable cause? The Court held
that a very brief detention to investigate whether the luggage contained drugs
could be justified by mere reasonable suspicion, not probable cause.
179
“[W]hen
the police briefly detain luggage for limited investigative purposes,”
180
the Court
reasoned, the balancing framework of Terry v. Ohio
181
could apply. This was
true because “[w]hen the nature and extent of the detention are minimally
intrusive of the individual’s Fourth Amendment interests, the opposing law
enforcement interests can support a seizure based on less than probable
cause.”
182
Place next held that the 90-minute detention of the luggage in that case was
unlawful because it exceeded what reasonable suspicion could justify.
183
Although a very brief detention could be permitted with only reasonable
suspicion, the ninety-minute detention was so long that “the general rule
requiring probable cause for a seizure” instead applied.
184
The Court reasoned
that the reasonableness of detaining a person’s luggage fell within the Terry
framework for detaining a person.
185
Because a person was unlikely to leave
while his luggage was detained, “the limitations applicable to investigative
detentions of the person should define the permissible scope of an investigative
detention of the person’s luggage on less than probable cause.”
186
In that setting, a ninety-minute seizure was too long to be reasonable without
probable cause. “We have never approved a seizure of the person for the
prolonged 90-minute period” based only on reasonable suspicion, the Court
noted.
187
The ninety-minute delay was also out of bounds because it wasn’t
needed: agents had failed to “diligently pursue their investigation” to minimize
the time of delay.
188
Finally, agents had failed to inform the suspect of what was
happening, further exacerbating the unreasonableness of the stop.
189
For all
177. Id.
178. Id.
179. See Place, 462 U.S. at 700.
180. Id. at 705.
181. 392 U.S. 1, 30 (1968).
182. Place, 462 U.S. at 703.
183. Id. at 710.
184. Id. at 708.
185. Id. at 706.
186. Id. at 709.
187. Place, 462 U.S. at 709–10.
188. Id. at 709.
189. Id. at 710.
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those reasons, the ninety-minute detention was unreasonable without probable
cause.
190
Reasonableness is inherently fact-sensitive, and Place deals with only one
set of facts. But its framework has been applied broadly to other temporary
seizures, and the caselaw suggests that seizures based on less than probable
cause are typically limited to seizures on the order of hours—not days or weeks.
Place allows officers a brief time to freeze the situation and determine if they
can get probable cause. But precedents involving physical containers indicate
that this brief time is, well, brief.
Consider United States v. LaFrance, which involved the temporary seizure
of a FedEx package believed to contain cocaine.
191
Acting based on reasonable
suspicion, agents asked FedEx to hold on to the package pending further
word.
192
The package’s delivery was delayed for 135 minutes before a dog
sniffed the package, alerted, and gave the police probable cause.
193
The First
Circuit held that this brief detention could be permitted under Place based
merely on reasonable suspicion.
194
First, the officers had acted expeditiously to
obtain the dog sniff.
195
Second, the duration of the delay was slightly less of an
intrusion on Fourth Amendment interests than in Place because the delay did
not interfere with the owner’s liberty interests. The property owner was
dispossessed of his property, but his freedom was not practically restrained.
196
Finally, the lack of information given to the owner about the seizure was deemed
“likely irrelevant” because the seizure was from a third party and not the owner,
so that information would not mislead the owner and impair his ability to
travel.
197
On the whole, the court concluded, the 135-minute detention was
reasonable.
198
Other cases have allowed somewhat longer detentions based on reasonable
suspicion. Although not a model of clarity, Van Leeewen had seemed to approve
a 29-hour detention of a package.
199
Circuit court cases after Place have
similarly allowed detentions of postal mail for a day, or in some cases, even
longer.
200
Many of the cases resemble the facts of LaFrance, in which in which
190. Id.
191. 879 F.2d 1, 2 (1st Cir. 1989).
192. Id. at 3.
193. Id. at 3, 7.
194. Id. at 4.
195. Id. at 8.
196. LaFrance, 879 F.2d at 9.
197. Id.
198. Id. at 10; see also United States v. Gonzalez, 781 F.3d 422, 429 (8th Cir. 2015) (allowing
a three-and-a-half-hour delay in similar circumstances).
199. Perhaps unsurprisingly, in light of that description, it is an opinion by Justice Douglas.
United States v. Van Leeuwen, 397 U.S. 249, 253 (1970).
200. See, e.g., United States v. Lozano, 623 F.3d 1055, 1055 (9th Cir. 2010) (allowing twenty-
two-hour delay).
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officers detain a postal package based on reasonable suspicion pending a dog
sniff. When it takes a long time to get a drug-sniffing dog to confirm or dispel
the suspicion, courts have been relatively lenient in allowing a delay as long as
officers worked expeditiously to bring in the dogs.
A particularly long delay was permitted in United States v. Aldaz, in which
a postmaster in “a small bush community” in rural Alaska, reachable only by air,
detained packages based on reasonable suspicion that it contained drugs.
201
Because the nearest trained dogs were in Anchorage, 700 miles away, agents
waited for a plane and flew the packages to Anchorage where they could be
sniffed, and the probable cause either established or dispelled.
202
Waiting for the
planes delayed the packages for two to three days.
203
The Ninth Circuit ruled
that the delay was nonetheless reasonable, as officers moved as quickly as they
could under the circumstances and it was unfair to penalize the government for
“the inevitable delays of bush mail.”
204
C. Probable Cause Traditionally Permits a Warrantless Seizure to Allow a
Search Warrant to Be Obtained
The second type of caselaw on temporary detentions involves detentions of
physical property based on probable cause. In this scenario, the government
seizes a container without a warrant, based on probable cause to believe it
contains evidence or contraband. Armed with probable cause, the government
can then apply for a warrant to search the property. Courts give the government
“a reasonable amount of time” to apply for a warrant.
205
The permitted window
of delay between the warrantless seizure and obtaining the warrant is typically
on the order of days, or at most weeks, not months.
Recent circuit court decisions on seizing personal computers demonstrates
both sides of the legal line. In United States v. Mitchell, the Eleventh Circuit
held that a 21-day warrantless seizure was too long under the circumstances of
that case.
206
During an interview with federal agents at his home, Mitchell
admitted that there was child pornography on a desktop computer he used.
207
A
federal agent opened up the computer, removed the hard drive, and took it into
government custody.
208
Three days later, the agent traveled out of state for a
two-week training program.
209
The agent applied for and obtained a warrant
201. 921 F.2d 227, 228 (9th Cir. 1990).
202. Id. at 231.
203. Id.
204. Id.
205. Illinois v. McArthur, 531 U.S. 326, 334 (2001).
206. 565 F.3d 1347, 1353 (11th Cir. 2009) (per curiam).
207. Id. at 1349.
208. Id.
209. Id.
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three days after he returned from training, a total of 21 days after the hard drive
was seized.
210
Mitchell held that the twenty-one-day delay was unconstitutional “in light
of all the facts and circumstances”
211
based on a “careful balancing of
governmental and private interests.”
212
First, taking the hard drive away was a
substantial interference with Mitchell’s possessory interest. “Computers are
relied upon heavily for personal and business use,” the court noted.
213
“Individuals may store personal letters, e-mails, financial information,
passwords, family photos, and countless other items of a personal nature in
electronic form on their computer hard drives.”
214
As a result, “the detention of
the hard drive for over three weeks before a warrant was sought constitutes a
significant interference with Mitchell’s possessory interest.”
215
The interference
with Mitchell’s possessory interest was significant even though Mitchell had
admitted that child pornography would be found on the computer. The computer
likely contained “other, non-contraband information of exceptional value to its
owner,” and the government could not be sure that Mitchell was correct that the
computer contained contraband images “until an agent examine[d] the hard
drive.”
216
On the flip side, the government offered “no compelling justification” for
the delay in obtaining the warrant.
217
The agent just didn’t think there was a
hurry.
218
He could have applied for the warrant before the he left for his two-
week training, but he did not.
219
And the agent leaving for his training was not
a valid justification for the delay, the court reasoned, as another agent could have
taken over the case while the main agent was away.
220
Given that a person’s
computer was “the digital equivalent of its owner’s home, capable of holding a
universe of private information,”
221
any additional delay would infringe on the
owner’s possessory rights by delaying when the device could be returned “if the
search reveals nothing incriminating.”
222
Because the twenty-one-day seizure
210. Id.
211. Mitchell, 565 F.3d at 1351 (quoting United States v. Mayomi, 873 F.2d 1049, 1054 n. 6
(7th Cir.1989)).
212. Id. (quoting Soldal v. Cook County, 506 U.S. 56, 71 (1992)).
213. Id.
214. Id.
215. Id.
216. Mitchell, 565 F.3d at 1351.
217. Id.
218. See id.
219. Id.
220. Id.
221. Mitchell, 565 F.3d at 1352 (quoting Kansas v. Rupnick, 125 P.3d 541, 552 (Kan. 2005)).
222. Id. (quoting United States v. Mitchell, No. CR407-126, 2007 WL 2915889, at *7 (S.D.
Ga. Oct. 3, 2007)).
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deprived Mitchell of his possessory interest without justification, it exceeded the
permitted time window and violated the Fourth Amendment.
223
The Second Circuit’s recent decision in United States v. Smith sounds a
similar note.
224
An officer seized the suspect’s tablet computer when he
observed what appeared to be child pornography on the computer’s open screen
during a traffic stop.
225
The government waited thirty-one days before
submitting a warrant to search it, which the Second Circuit ruled was an
unreasonable amount of time, and therefore violated the Fourth Amendment.
226
The Second Circuit in Smith applied a four-factor test that considered the
length of the delay, the importance of the seized property to the defendant,
whether the defendant had a reduced property interest in the seized item, and the
strength of the state’s justification for the delay.
227
First, thirty-one days was
excessive: “if the police have probable cause to seize an item in the first place,”
the court reasoned, “there is little reason to suppose why they cannot promptly
articulate that probable cause in the form of an application to a judge for a search
warrant.”
228
Second, “personal electronic devices like a modern cell phone or
tablet computer” deserved special privacy protection generally in light of the
personal items they store, although the defense did not point to the particular
importance of that tablet computer.
229
Third, the defendant owned the property
and did not consent to its seizure.
230
And finally, the record did not show “any
particular investigation or police duty that specifically delayed [the officer] in
applying for a search warrant for the seized tablet.”
231
Now contrast Mitchell and Smith with the Eleventh Circuit’s decision in in
United States v. Laist.
232
Laist was a child pornography case in which the
defendant admitted that he had child pornography on his computers.
233
Laist
showed the officers a sample image and signed a consent form allowing the
223. Id. at 1353.
224. 967 F.3d 198, 202 (2d Cir. 2020).
225. Id. at 202–03.
226. Id.
227. Id. at 206. The Smith court adopted these standards from an earlier round of the Smith case,
which had remanded for fact-finding. See United States v. Smith, 759 F. App’x. 62, 65 (2d Cir.
2019) (“General relevant considerations include the length of the delay, the importance of the
seized property to the defendant, whether the defendant had a reduced property interest in the seized
items, and the strength of the state’s justification for the delay.”). The court also noted in its second
opinion in Smith that “[o]ther federal appeals courts have set forth similar relevant factors that
essentially seek to balance the individual’s possessory interest against the government’s continuing
interest in retaining the property for investigation or prosecution.” Smith, 967 F.3d at 206 n.1.
228. Smith, 967 F.3d at 207.
229. Id. at 208.
230. Id. at 209.
231. Id. at 210.
232. 702 F.3d 608 (11th Cir. 2012).
233. Id. at 610.
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officers to seize and search his computers. But before the officers took the
computers away, they allowed Laist to copy “whatever he wanted” to a separate
computer so he would have files he needed for legitimate purposes.
234
About a
week after agents took the computers away, Laist revoked his consent.
235
The
government continued to hold Laist’s computers as it prepared search warrants,
but it did not apply for a warrant until twenty-five days after it had received the
revocation of Laist’s consent.
236
The magistrate judge then took six days to
review and grant the warrant, although that time was not considered relevant in
considering the reasonableness of the government’s seizure.
237
Laist ruled that the 25-day delay in Laist was reasonable.
238
Although the
seizure following Laist’s withdrawal of consent interfered with his possessory
interest, that interference was diminished by Laist’s retaining effective control
over the non-contraband contents.
239
Laist copied files he wanted before the
seizure, and “there is no indication in this record that the FBI would have denied
a [later] request to retrieve additional non-contraband material on the
computer.”
240
“Since the possessory interest in a computer derives from its
highly personal contents,” the court reasoned, “the fact that Laist had a real
opportunity to copy or remove personal documents reduces the significance of
his interest.”
241
The interference was further diminished by Laist having shown
an image of child pornography on the computer to the officers before the
seizure.
242
On the flip side in Laist, “the government acted diligently, and thus
reasonably,” in obtaining the warrant.
243
Although the government had taken
twenty-five days to apply for the warrant, the agents had started preparing the
warrant immediately and had gone through several drafts.
244
The case was
unusually complex, and the affidavit they submitted was long and detailed. The
agents also had been very busy with other cases.
245
As a result, although the
twenty-five-day delay was “far from ideal,” the officers had been “sufficiently
diligent to pass muster under the Fourth Amendment.”
246
The case was therefore
distinguishable from the slightly shorter delay ruled unconstitutional in Mitchell,
234. Id. at 611.
235. Id.
236. Id. at 614 n.2.
237. Laist, 702 F.3d at 614–15.
238. Id. at 616.
239. Id.
240. Id.
241. Id.
242. Laist, 702 F.3d. at 616.
243. Id.
244. Id. at 616–17.
245. Id. at 617 (“An investigation of this scope and complexity requires more time to prepare a
warrant.”).
246. Id.
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where there was no good reason for the delay and there had been a greater
interference with the computer owner’s possessory interest.
247
As Mitchell, Smith, and Laist show, the reasonableness of a seizure based
on probable cause is not only about the period of the delay. Whether the inquiry
is expressed formally as a multi-factor test (as the Second Circuit does) or a
weighing of government and security interests (as other circuits do),
248
what
matters in this totality-of-the-circumstances inquiry is the balance between the
extent of the seizure’s interference with the possessor’s interests in the seized
property and the government’s diligence in pursuing a warrant.
249
The more the
seizure interferes with the owner’s interests, the more brief the seizure must be.
Conversely, it is important that officers show diligence in seeking a warrant.
D. Preservation Should Require At Least Reasonable Suspicion – and in
Most Cases, It Should Require Probable Cause
The critical question is how to determine the reasonableness framework for
Internet content preservation. The Supreme Court has explained that the
reasonableness of a warrantless seizure has a two-fold requirement: it must be
“justified at its inception” and then “reasonably related in scope to the
circumstances which justified the interference in the first place.”
250
It is therefore
helpful to analyze the reasonableness of Internet content preservation under the
same two lenses. First, what kind of cause is needed to justify preservation at its
inception? Next, how long can preservation extend so that it is reasonably related
in scope to the circumstances which justified the interference in the first place?
This Section begins with the first question, the needed cause to justify
preservation at its inception.
In my view, justifying Internet content preservation at its inception will
ordinarily require at least reasonable suspicion—and in most cases, it should
require probable cause. This is the lesson taught by the caselaw on temporary
physical seizures analyzed in Parts B and C above. At the inception stage of the
seizure, the similarities between seizing physical contents and seizing digital
contents are compelling. In both contexts, the government takes control of the
person’s property and sets it aside to investigate. The initial seizure triggers a
transfer of control from the citizen to the government. In both cases, the transfer
of control is merely anticipatory. The government sets aside the container
without opening it. But the seizure negates the user’s control of the property and
gives that control to the government.
Justifying this transfer of control should require the same initial cause for
temporary digital seizures that it requires for temporary physical seizures. As
247. Laist, 702 F.3d. at 617–18.
248. See United States v. Smith, 967 F.3d 198, 206 n.1 (2d Cir. 2020) (citing cases).
249. See also Illinois v. McArthur, 531 U.S. 326, 326 (2001).
250. Terry v. Ohio, 392 U.S. 1, 20 (1968).
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United States v. Place emphasized, “the general rule” under the Fourth
Amendment is that “probable cause [is required] for a seizure.”
251
At the same
time, the government can “briefly detain luggage for limited investigative
purposes”
252
under the balancing framework of Terry v. Ohio
253
based only on
reasonable suspicion. “When the nature and extent of the detention are
minimally intrusive of the individual’s Fourth Amendment interests, the
opposing law enforcement interests can support a seizure based on less than
probable cause.”
254
Justifying Internet content preservation should trigger the
same framework. The general rule should be that probable cause is required,
although some brief preservation for limited investigative purposes can be
justified by reasonable suspicion.
I am not arguing that the reasonableness framework for physical seizures
should be adopted wholesale for Internet content preservation. As noted earlier,
digital seizures are different from physical seizures in an important way.
255
When the government seizes physical property, it interferes with two Fourth
Amendment possessory interests: the possessory interest in control and the
possessory interest in use. A physical seizure takes both. When there is only one
item, and it cannot be copied, taking control of it necessarily eliminates the
owner’s access and use. In contrast, when the government copies Internet
contents, it interferes with the interest in control without affecting the interest in
use. The government gets a new copy, but the user retains control over the old
one. Control is lost, but use is retained.
This difference should alter the reasonableness of Internet content
preservation, in my view, but not at the first step of justifying the seizure at its
inception. Recall that the reasonableness of a warrantless seizure has two steps:
it must be “justified at its inception,” and the scope of the seizure must be
“reasonably related in scope to the circumstances which justified the interference
in the first place.”
256
This distinction neatly tracks the two possessory interests.
Justification at a seizure’s inception is primarily about loss of control. The
government gains control at the moment of inception. In contrast, the scope of
the seizure is more about the property owner’s loss of use. After the initial
seizure occurs, it can go on for a long time. The longer it goes, the greater the
deprivation of use. From this perspective, the reasonableness of Internet content
preservation at its inception should track the reasonableness of physical seizures
at their inception. The difference in the reasonableness framework should occur
251. 462 U.S. 696, 708 (1983).
252. Id. at 705.
253. Terry, 392 U.S. at 19–20.
254. Place, 462 U.S. at 703.
255. See supra note 146 to 151 and associated text.
256. Terry, 392 U.S. at 20.
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at the second step (the scope of the seizure) rather than the first step (the initial
seizure).
Although the scope of seizures will be addressed later, it is worth flagging
now why most preservation will require probable cause and not just reasonable
suspicion.
257
The Terry framework that permits seizures based on reasonable
suspicion is quite limited. As Section IV, Part B showed, the Terry authority
allows the government to freeze the scene only briefly. The government can hold
on to physical property on the scene as it assesses probable cause, enabling
investigators to bring in drug-sniffing dogs or ask the suspect questions.
258
The
temporary seizure is reasonable because otherwise the property would be
physically taken away and the government might not be able to get it back.
Internet content preservation should normally require probable cause
because it does not typically occur with the limited purpose or for the limited
time that Terry allows. This is implicit in the technology itself. Because
providers host accounts, and they cooperate with government investigations
under the SCA, investigators that are able to preserve a specific account under
§ 2703(f) also have technological access to its contents with a search warrant
under § 2703(a) as long as the account remains operating. With the provider able
to access contents at any time, government-directed preservation will tend to
have a long time horizon. Freezing a scene briefly to make sure property doesn’t
get away, as Terry permits, typically won’t be needed. Instead, preservation will
be undertaken just in case a suspect deletes incriminating files, or his entire
account weeks or months down the road. In the ordinary case, preservation will
not fit within the Terry reasonable suspicion framework.
The need for probable cause is particularly strong given the personal and
sensitive nature of Internet contents subject to seizure under § 2703(f).
Precedents on the search and seizure of personal computers and cell phones have
already recognized the deeply personal nature of electronic messages. As the
Second Circuit noted in Smith, the “age of digital storage” enables the
government to seize “immense amounts of personal data,” much of which “will
be deeply personal and have nothing to do with the investigation of criminal
activity.”
259
As the Supreme Court recognized in Riley v. California, digital
storage devices such as modern cell phones, “as a category, implicate privacy
concerns far beyond those implicated by the search of a cigarette pack, a wallet,
or a purse.”
260
The same principle applies to the electronic seizure of remotely stored
Internet contents. Section 2703(f) is widely used by law enforcement precisely
257. See infra Section IV, Part F.
258. See supra Section IV, Part B.
259. United States v. Smith, 976 F.3d 198, 207 (2d Cir. 2020) (quoting United States v. Ganias,
824 F.3d 199, 218 (2d Cir. 2016) (en banc)).
260. 573 U.S. 373, 393 (2014).
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because so much of what people do, say, and think is recorded in their online
accounts. E-mail accounts can store tens of thousands of personal messages.
261
Facebook accounts will include all of a person’s Facebook private messages, all
of their uploaded photographs, and all of their status updates.
262
A world in
which so many Americans detail their most personal thoughts and personal
events in their private accounts is a world in which an extraordinary amount of
their private lives is available to be preserved under § 2703(f). As cases like
Riley and Smith suggest, the extraordinary detail and personal nature of so much
digital information weighs strongly toward requiring probable cause for most
Internet content preservation.
E. DOJ’s Flawed Argument That Preservation Does Not Require Cause
DOJ offered a very different view of preservation’s reasonableness in
Basey.
263
DOJ argued that, if preservation causes a seizure, it is a reasonable
seizure without any cause. According to DOJ, “[t]he privacy impact of
preservation requests on account holders is minimal.”
264
Preservation does not
block user access and does not compel disclosure.
265
Further, the duration of
preservation is “brief, and afterwards the provider is free to delete the preserved
information.”
266
On the other hand, preservation advanced a “compelling”
government interest: “Electronic evidence is critical in a wide range of criminal
investigations, and it can be deleted irretrievably in an instant.”
267
“Balancing
these interests,” DOJ argued, “the government’s reliance on the preservation
rules of § 2703(f) is reasonable.”
268
I am not persuaded. The existing caselaw on reasonableness has not
permitted temporary seizures pending further investigation without cause. As
Section IV Parts B and C showed, “the general rule” is that probable cause is
required to justify such a seizure.
269
The exception to the general rule, applicable
in narrow circumstances, permits a brief seizure based only on reasonable
suspicion.
270
I am aware of no authority permitting temporary warrantless
seizures to investigate further without any cause at all.
271
Notably, DOJ’s Basey
261. See Mike Barton, How Much Is Your Gmail Account Worth?, WIRED (July 25, 2012),
http://www.wired.com/insights/2012/07/gmail-account-worth [https://perma.cc/BS82-FKSC].
262. Det. James Williams, supra note 78, at 17–22 (listing the items that Facebook stores for
each account).
263. See DOJ Basey Brief, supra note 130, at 29.
264. Id. at 28.
265. Id.
266. Id.
267. Id. at 29.
268. DOJ Basey Brief, supra note 130, at 29.
269. United States v. Place, 462 U.S. 696, 708 (1983).
270. See supra Section IV, Part B.
271. Perhaps the case closest to that position is Maryland v. King, which held that the
government can conduct a search of person’s cheek using buccal swab to obtain their DNA sample
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brief points to no such authority. Such a rule would be particularly inappropriate
given the highly sensitive and personal documents that the government seizes
on a massive scale under § 2703(f).
In addition, DOJ’s characterization of the preservation process does not ring
true. The seizure is not “brief,” as DOJ claims. The statute requires preservation
for two ninety-day periods. It is hard to see how a seizure lasting half of a year
could count as “brief” in light of the caselaw discussed earlier. Whether the
privacy impact of preservation is minimal misses that preservation is a seizure,
not a search. It requires justification because it takes control of a person’s private
communications, not because it exposes them—a step that itself would require
a warrant, not just some amount of cause.
Finally, the risk that valuable electronic evidence “can be deleted
irretrievably in an instant” does not differentiate electronic seizures from
physical seizures.
272
The concern justifying temporary warrantless physical
seizures has always been that a seizure now may be needed to ensure that
important evidence is not lost. Recall the many cases in which the government
seizes a package suspected of containing drugs.
273
Unless the government held
on to the package, the package and its contents could be gone forever. Drugs
might be flushed down the toilet, moved to an unknown place, or consumed. The
ease of deleting digital evidence is nothing new and does not justify a different
rule.
F. The Permitted Period of Preservation
The final reasonableness question is the scope of preservation.
274
This is
primarily a question of time. After preservation of contents has begun, how
many days can elapse before either a warrant is obtained to compel the contents,
or the preservation ends without disclosure and the contents are deleted? I think
there are two very different answers, depending on whether the basis for the
preservation was reasonable suspicion or probable cause. If the preservation was
based only on reasonable suspicion, the preservation normally must be quite
after arresting them for a serious offense. 569 U.S. 435, 447–66 (2013). The Court reasoned that
the pressing need to learn someone’s identity upon their arrest makes the swab reasonable in light
of the diminished expectation of privacy of a person who has been arrested. See id. But if King is
the government’s best case for the reasonableness of § 2703(f) preservation without cause, that
only signals the weakness of the government’s position. King’s balancing of interests relied heavily
on the fact that the person searched was already arrested and the information obtained was limited
to identity information. In contrast, the debate over § 2703(f) is about whether a suspect’s
voluminous and private electronic documents can be seized without cause at the outset of case. The
natural fit is with precedents like Place and MacArthur, not King. See id.
272. DOJ Basey Brief, supra note 130, at 28.
273. See supra Section IV Parts A–C.
274. Terry v. Ohio, 392 U.S. 1, 20 (1968) (requiring the that the extent of a seizure be
“reasonably related in scope to the circumstances which justified the interference in the first
place.”).
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brief. On the other hand, if the initial preservation is based on probable cause,
then it can generally be quite long—on the order of many weeks or even months.
Internet content preservation based only on reasonable suspicion should be
quite rare and quite brief. As noted above, the preservation process doesn’t fit
Terry’s reasonable suspicion framework very well. Reasonable suspicion
seizures are about quickly freezing a scene to investigate further.
275
In the case
of a physical package, the seizure might be permitted to bring in drug-sniffing
dogs, or to ask its owner some questions.
276
The delays are short, typically from
minutes to hours—at most a few days when the investigation cannot be done
more quickly.
277
Internet preservation won’t normally fit this framework, because
preservation usually is aimed at a different problem. Content preservation exists
because a suspect might, at some point, delete incriminating files or even his
entire account. Preservation will implicate this concern in the short-term sense,
primarily when exigent circumstances exist. For example, if the police learn that
a suspect knows he is under investigation, and that he told people that morning
that he is going to delete his account that day, an exigency would exist that would
justify quick preservation based on reasonable suspicion. But such a scenario
will be rare. In the ordinary case, preservation occurs with a longer time horizon
just in case the suspect at some point deletes his contents. A brief preservation
permitted by reasonable suspicion is possible, but it should be uncommon.
A different picture appears when the government has probable cause. In
such a case, the permitted window of delay between preservation under
§ 2703(f) and serving a warrant under § 2703(a) can be quite long. With
probable cause existing to justify initial preservation, the Fourth Amendment
interest in a prompt warrant application becomes modest. The user is not denied
access to his account during the preservation. The user does not know
preservation has occurred, so his experience accessing the account is the same
regardless of how long the preservation occurs. And after the contents of an
account have been set aside, it makes no obvious difference whether the
information preserved is disclosed now or disclosed later. Either way, the same
information is disclosed. The duration of the seizure is therefore relatively
unimportant.
The Eleventh Circuit’s ruling in United States v. Laist, discussed earlier, is
helpful on this point.
278
In the course of upholding a twenty-five-day delay
before officers submitted a warrant application to search Laist’s computers, the
Eleventh Circuit emphasized that Laist had been given the opportunity to copy
275. See supra Section IV, Part B.
276. Id.
277. Id.
278. See supra notes 226 to 243.
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any files he needed—“whatever he wanted”—before the seizure occurred.
279
“Since the possessory interest in a computer derives from its highly personal
contents,” the court reasoned, “the fact that Laist had a real opportunity to copy
or remove personal documents reduces the significance of his interest” and
helped make the delay reasonable.
280
This is all the more so with purely
electronic copying that does not interfere with the user’s access to his files at all.
It’s worth asking: does the period of delay matter at all when the initial
preservation was justified by probable cause? Does it matter if the government
comes back with a warrant after a day, versus after a year? Precedents on
physical seizures suggest that delay should matter because officers must be
diligent in seeking a warrant. If the police are not diligent in obtaining the
warrant, the seizure is not likely to be upheld as reasonable.
281
Should the same
be true of electronic preservation based on probable cause?
When the government has probable cause at the inception of the
preservation, a significant delay between preservation and the warrant should be
permitted. Extended periods of delay should be permitted in this situation
because extra delay imposes only an abstract additional infringement on the
account holder’s Fourth Amendment rights. The period of delay between
preservation and the warrant matters only for when the warrantless seizure is
subjected to a judicial determination of probable cause. Mitchell stressed that
additional delay can interfere with a possessory interest in physical property for
that reason: the longer property is seized before a warrant is obtained, the longer
the infringement of Fourth Amendment interests will extend if a judge later
concludes that no probable cause existed.
282
The possessory interest is very slight, however, when a seizure has occurred
only through electronic copying and the user retains access to his personal data.
Because the test for probable cause would look to the time of preservation, the
timing of judicial assessment of probable cause makes no obvious impact on the
user’s Fourth Amendment rights. The government has gained control of a
preserved copy of the account but cannot access the copy without a warrant.
Whether the judicial probable cause determination needed to obtain the warrant
happens now or later has no obvious impact on the user’s Fourth Amendment
rights.
The reader may wonder: If the timing of the judicial determination of
probable cause has little impact on the user’s Fourth Amendment rights, then
why require the government to have probable cause at the outset of preservation?
At first blush, it might seem inconsistent to require cause at the inception of
279. United States v. Laist, 702 F.3d 608, 611 (11th Cir. 2012).
280. Id. at 616.
281. See, e.g., United States v. Place, 462 U.S. 696, 709–10 (1983); see also Laist, 702 F.3d at
617.
282. See United States v. Mitchell, 565 F.3d 1347, 1351 (11th Cir. 2009) (per curiam).
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preservation, but to then say that it makes little difference how much time
elapses before a judge determines whether probable cause exists. But no
inconsistency exists. The Fourth Amendment harm when preservation occurs
without cause is that the government has taken control of constitutionally
protected contents without cause. A cause requirement at the outset prevents
limitless wholesale seizures on the off chance that probable cause will happen
to someday emerge. In contrast, the post-preservation timing of a judicial
determination of probable cause looks at a different question. It asks when a
court will determine whether probable cause existed both at the inception of
preservation.
283
Also, if new facts later emerged, the court will determine if
probable cause also existed when the warrant was obtained.
284
V. CONSEQUENCES AND REMEDIES
This Section offers two perspectives on the argument I have made in this
article. First, it explains the proper role of Internet content preservation under
the Fourth Amendment limits I have proposed. 18 U.S.C. § 2703(f) can continue
to be an important part of the SCA. But it must be used much more sparingly
than it has been used in the past. Preservation can give the government time to
draft a proper warrant, and it can prevent destruction of evidence when exigent
circumstances have been shown. But it cannot be used to preserve every
suspect’s account just in case probable cause emerges down the investigatory
road.
The Section then turns to a practical litigation point. How might these issues
come up in court? In particular, how might the Fourth Amendment limits of
Internet content preservation be litigated in a criminal case? This Section focuses
on two exceptions to the exclusionary rule that are likely to come up in litigation,
the good-faith exception of Illinois v. Krull
285
and the inevitable discovery
exception. These doctrines may make suppression a tricky road to travel, but
they also leave open a path for a criminal defense challenge to current practices
in the right circumstances.
283. In a case where there was an initial preservation based only on reasonable suspicion, the
court would need to ask if there was reasonable suspicion at the outset of preservation and then
probable cause by the time the reasonable-suspicion window elapsed and probable cause was
required.
284. If probable cause existed at the moment of preservation, but new facts later emerged before
a warrant was obtained that eliminated that probable cause, the government would be unable to
compel disclosure of the preservation copy. Cf. United States v. Tenerelli, 614 F.3d 764, 770 (8th
Cir. 2010) (discussing how a warrant can become stale if probable cause dissipates between the
time the warrant is signed and the warranty is executed).
285. 480 U.S. 340, 360 (1987).
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A. The Proper Role of Internet Content Preservation
This article suggests a dramatically narrowed role for Internet content
preservation under the SCA. Investigators should no longer be allowed to issue
preservation requests whenever they find out that a suspect has an Internet
account just in case probable cause later emerges. Section 2703(f) cannot be
used like a machine gun, letting officers spray preservation bullets at anything
that moves, only to later see if they hit anything important. Instead, Internet
content preservation must be targeted. In most cases it will require probable
cause, and at the very least it will require reasonable suspicion for very brief
periods of preservation.
This does not mean that Internet content preservation must cease.
Preservation can continue to play a significant role in many cases. Most
importantly, preservation will remain important because writing up a warrant
can take time. Determining the correct description of the evidence needed to
satisfy the Fourth Amendment’s particularity requirement can require
considerable legal judgment. Explaining a complex digital crime investigation
completely and accurately in an affidavit can require considerable time. As a
matter of executive branch policy, warrant applications drafted by one agent or
prosecutor may be reviewed by others first before a judge sees them.
Under my approach, preservation permits the government to order
preservation of an account immediately, so agents can take their time to get the
warrant details right. Agents can preserve, freezing the whole account, as soon
as they have probable cause. They can then draft the warrant carefully later,
making sure that the application they submit to a judge to compel disclosure has
properly described the investigation, particularly described the property to be
seized, and received the internal reviews that ensure the application is error-free.
The preservation authority ensures that the warrant application process will not
be rushed by fears that data will be deleted. This role should ring a bell, as it is
the same role that the temporary seizure doctrine served for physical property in
cases like Mitchell, Smith, and Laist.
286
Preservation also can be used when exigent circumstances exist. If
investigators learn that a suspect is likely to delete his account, or otherwise to
delete incriminating records, the preservation authority can enable an immediate
seizure to set aside the data and take it beyond the user’s control. Again, this is
a familiar role from caselaw on seizing physical computers. If an agent is
speaking to a suspect about evidence of crime on his cell phone or laptop, and
the suspect realizes the agent is coming back with a warrant to seize it, exigent
circumstances may exist permitting the agent to seize the computer to prevent
the suspect from destroying the hard drive or deleting incriminating files.
287
Preservation can serve the same role for Internet contents that it serves for
286. See Section IV, Part D.
287. See, e.g., United States v. Bradley, 488 F. App’x 99, 103 (6th Cir. 2012).
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physical devices. It just does so through the intermediary of the content provider
rather than through direct action by an officer.
I don’t mean to catalog the full set of circumstances in which preservation
may be used. Fourth Amendment reasonableness can take many forms, making
a universal answer impossible to provide. But the core lesson is that Internet
content preservation needs to fit the same basic constitutional limits as other
temporary seizures. For the last quarter century, § 2703(f) has been interpreted
to allow the government to preserve everything with no cause. It has allowed
investigators months to develop probable cause, and to simply not follow up in
the majority of cases when no probable cause emerged. That practice must end.
B. Challenging Preservation in Court, and the Scope of Exclusionary Rule
The final question to consider is how challenges might be brought
successfully in court. Civil actions are relatively unpromising. The absence of
notice precludes civil suits when the government did not follow up with a
warrant. When the government followed up with a warrant, but no charges were
brought, the statute does not require notice to the user, either.
288
Even when
notice has been provided, civil actions against providers will run into the broad
statutory good faith exception
289
—or, in cases against the government, qualified
immunity.
The more promising litigation context is a motion to suppress in a criminal
case. Prosecutors usually will not, by default, disclose records of prior
preservation. But defense counsel should press the issue. In every case where
discovery reveals that a search warrant for Internet contents was obtained under
18 U.S.C. § 2703(a), defense counsel should assume that the warrant was
preceded by preservation under § 2703(f). They should ask for any records on
when a preservation request was made and how broadly it extended, including
the contents of any preservation request letter that was sent to the provider.
Defense counsel should also scrutinize any warrant materials for references to
prior preservation. The goal should be nailing down the precise date on which
preservation occurred—the point by which, if my arguments are correct,
probable cause (or at least reasonable suspicion) must have been established.
Now assume a criminal defendant files a motion to suppress and can
establish that preservation under § 2703(f) violated his Fourth Amendments
rights. Can he actually win a motion to suppress? Here the picture is mixed.
Suppression is always an uphill battle. That is particularly true when a defendant
288. See 18 U.S.C. § 2703(a). Notice may be provided under a provider’s privacy policy,
however, unless notice is forbidden under a gag order imposed by 18 U.S.C. § 2705(b).
289. See 18 U.S.C. § 2707(e) (“A good faith reliance on– (1) a court warrant or order, a grand
jury subpoena, a legislative authorization, or a statutory authorization (including a request of a
governmental entity under section 2703(f) of this title)”).
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wins on a new Fourth Amendment claim.
290
At the same time, the prospect of
suppression is less bleak than it may first seem. The good-faith exception of
Illinois v. Krull
291
might apply, but there is a significant argument that it should
not. While the inevitable discovery exception might apply, it would apply only
to the warrant copy. The inevitable discovery exception would not apply to the
contents found only in the preservation copy.
1. The Good-Faith Exception of Illinois v. Krull
The first exclusionary rule doctrine to consider is the good-faith exception
of Krull. Krull directs that the exclusionary rule does not apply when officer
conducts a search or seizure “in objectively reasonable reliance upon a
statute.”
292
When a statute permits an act that courts later determine violates the
Fourth Amendment, the thinking runs, officers are entitled to rely on the implicit
legislative judgment that the statute was constitutional and should not be
punished when they do:
Unless a statute is clearly unconstitutional, an officer cannot be expected to
question the judgment of the legislature that passed the law. If the statute is
subsequently declared unconstitutional, excluding evidence obtained pursuant
to it prior to such a judicial declaration will not deter future Fourth Amendment
violations by an officer who has simply fulfilled his responsibility to enforce the
statute as written.
293
At first blush, the case for relying on the good-faith exception when the
government makes a § 2703(f) request seems straightforward. For a quarter
century, since the law was enacted, the common understanding has been that
§ 2703(f) permits preservation requests at any time. After all, the law imposes
no textual limits on when the government can request preservation. The Justice
Department (including me, when I was there) and providers have understood
that to mean that no limits exist. Preservation requests have been thought to be
entirely at the government’s discretion, with both agents and prosecutors having
been trained accordingly. Absent contrary caselaw, it would be reasonable for
an agent or prosecutor to assume that this shared understanding is correct.
But there’s a problem with this argument. As Section I explained, the text
of § 2703(f) is unclear about when the government can request preservation and
what records preservation covers.
294
The prevailing practice has been to
understand § 2703(f) as authorizing the government to order content
290. See, e.g., Davis v. United States, 564 U.S. 229, 232 (2011) (holding that the exclusionary
rule is not available if the government’s conduct complied with then-existing precedents that have
since been overturned).
291. 480 U.S. 340, 340 (1987).
292. Id. at 349.
293. Id. at 349–50.
294. See supra Section I, Parts B and D.
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preservation whenever it wishes. But that interpretation may very well be
wrong.
295
The uncertainty leaves unclear whether Krull applies. Krull is
premised on the idea that investigators would reasonably decline to second-
guess “the judgment of the legislature that passed the law” in authorizing what
courts later conclude is a constitutional violation.
296
If the legislature made no
such judgment, however, Krull’s reasoning may not apply.
If a court agrees that an unconstitutional act of preservation occurred, and
that it was not authorized by the language of the statute, whether the good faith
exception applies becomes quite murky. Courts might say that, with Krull out of
the way, the exclusionary rule applies. Alternatively, they might say that the
reasonable-mistake-of-law principle of Heien v. North Carolina
297
combines
with Krull when the statute has been reasonably misinterpreted. On that
thinking, perhaps the exclusionary rule does not apply when an officer
reasonably misinterpreted a statute as authorizing preservation, and, if that
misinterpretation had been correct, Krull would have then applied. I take no
position on that question. Instead, I merely note that this application of the
exclusionary rule is not clear.
298
2. The Inevitable Discovery Exception
The second question is how the inevitable discovery exception might apply.
Under the inevitable discovery exception, the exclusionary rule does not apply
when “the prosecution can establish by a preponderance of the evidence that the
information ultimately or inevitably would have been discovered by lawful
means.”
299
The basic idea is a “but for” causation test. If the evidence would
have been discovered anyway if the unconstitutional act never occurred, its
discovery was not caused by the unconstitutional act and should not be
suppressed.
Applying the inevitable discovery exception to preservation is surprisingly
straightforward. As Section II explained, providers typically comply with a
search warrant on a preserved account by working from two copies of the
account—the preservation copy and the warrant copy.
300
The preservation copy
is the set of responsive files made at the time of preservation, and the warrant
295. Id.
296. Krull, 580 U.S. at 350.
297. 135 S.Ct. 530, 540 (2014).
298. This issue was anticipated, but expressly not answered, in Krull. See Krull, 480 U.S. at
361–62 n. 17 (declining to address whether the exclusionary rule would apply if an officer acted
outside a statute that authorized searches and seizures later deemed unconstitutional, and noting
that the application of the exclusionary rule “might well be different when police officers act
outside the scope of a statute, albeit in good faith” because “the relevant actors are not legislators
or magistrates, but police officers”).
299. Nix v. Williams, 467 U.S. 431, 444 (1984).
300. See supra notes 101 to 103, and accompanying text.
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copy is the set of responsive files created from the account as it existed when the
warrant was served.
301
Providers sometimes comply with a warrant by handing
over both copies separately, and other times do so by combining the two copies
into a single production.
302
Applying the inevitable discovery exception leads to a simple outcome: the
exclusionary rule applies to the preservation copy but not to the warrant copy. If
the preservation copy is the fruit of an unconstitutional seizure, then it should
not have existed and it cannot be used. But the warrant copy exists independently
of preservation, and therefore it exists independently of the constitutional
violation. The government can ensure that it is only using “information [that]
ultimately or inevitably would have been discovered by lawful means,”
303
by
using only the warrant copy.
304
The simplicity of this answer gives some reason for law enforcement to ask
for compliance with warrants on preserved accounts, in the form of distinct
preservation and warrant copies instead of one combined production. If the
government receives the two copies separately, it can respond to a successful
suppression motion—or, ex ante, avoid a possible Fourth Amendment
challenge—by using only the warrant copy. Receiving a combined production,
without a distinct warrant copy, creates a more difficult situation for the
government because it bears the burden of establishing inevitable discovery.
305
The government would have to put the toothpaste back in the tube by showing
that each incriminating message was in the account when the warrant was
served. Although not an impossible task, it is far easier to simply work from the
warrant copy.
306
C
ONCLUSION
Applying the Fourth Amendment to new technologies often leads to calls
for change. Digital is different, the argument runs, and old rules must be adapted
301. Id.
302. See supra Section II, Part D.
303. Nix, 467 U.S. at 444.
304. Cf. United States v. Perez, 798 F. App’x. 124, 126 (9th Cir. 2020) (declining to address
how the Fourth Amendment applies to § 2703(f) because it was not clear error for the district court
to have found that the evidence compelled was from the warrant copy and not the preservation
copy).
305. See United States v. Lazar, 604 F.3d 230, 239–41 (6th Cir. 2010).
306. If the provider has not saved records of what contents were in the warrant copy, one
government strategy might be to obtain a second warrant in anticipation of (or in response to) the
suppression litigation. If specific incriminating contents are still in the account when the second
warrant is served, then those contents are admissible. But this is an imperfect strategy, as there may
be account contents that existed at the time of the first warrant that were deleted by the time of the
second warrant.
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to modern facts.
307
But that is not the claim I am making here. My argument is
about similarity, not difference. Internet content preservation should be subject
to the same basic Fourth Amendment restrictions that courts have applied to the
temporary seizures of packages, mail, and physical computers. Current practices
are unconstitutional not because the legal rules must be changed, but because
the current practices have never been subject to constitutional scrutiny at all.
Historically speaking, that is understandable. 18 U.S.C. § 2703(f) was
enacted in 1996, long before courts began to consider the Fourth Amendment
limits on disclosure of stored Internet records. At a time when the government
could simply subpoena most of a suspect’s e-mails, the idea of requiring
probable cause for mere preservation would have seemed fanciful. But our
understanding of how the Fourth Amendment applies to the Internet has
changed. We now see Internet contents as akin to mail and packages. Our
understanding of Internet preservation must be similarly brought up to date. The
government has enjoyed a windfall of unlimited preservation for long enough.
307. I have made this argument often myself. See, e.g., Orin S. Kerr, Foreword: Accounting for
Technological Change, 36 H
ARV. J.L. & PUB. POL’Y 403, 407 (2013) (“The computer will be to
the 21st century Fourth Amendment what the automobile was to the 20th century Fourth
Amendment. In both cases, transformative technologies justify technology-specific rules.”).
