Orin Kerr, 4th Amendment scholar, has a new article arguing defense attorneys should object to the government's preservation requests under 18 U.S.C. § 2703(f). Under 18 U.S.C. § 2703(f), Internet providers must preserve records and other evidence upon government demand for up to 180 days. In an investigation, such evidence preservation often occurs before probable cause or reasonable suspicion has been established. After a preservation request, the Internet provider stores a copy of the user's records until a warrant is issued, or the timeline lapses. This rule has been in effect since 1996 without a published Circuit Court case deciding whether the preservation request is a protected 4th Amendment activity.
The framework practitioners are working under appears to focus the constitutional issues on when the government receives the data, not when a user loses control over their information. While defense attorneys will litigate the judicial determination of probable cause after private information has been released to the government, Kerr argues the preservation itself should be contested. Practitioners should seek a judicial remedy to require a government showing of probable cause at the preservation stage, arguing preservation is a seizure of information, even if the user is unaware and retains access.
The law is always evolving, and this is a serious argument worthy of undertaking. As a practical matter, while there may not be a case to cite or a template motion for counsel to copy, the article provides arguments and cases defense attorneys can use. The article anticipates counterarguments, and should serve as a basis to craft a cogent motion seeking suppression of evidence gathered pursuant to a preservation request under 18 U.S.C. § 2703(f).