77-23b-5 - Backup copy of communications -- When required of provider -- Court order -- Procedures.
77-23b-5. Backup copy of communications -- When required of provider -- Courtorder -- Procedures.
(1) (a) A governmental entity acting under Subsection 77-23b-4(2)(b) may include in itssubpoena or court order a requirement that the service provider to whom the request is directedcreate a backup copy of the contents of the electronic communications sought in order topreserve those communications. Without notifying the subscriber or customer of the subpoena orcourt order, the service provider shall create the backup as soon as practicable, consistent with itsregular business practices. The provider shall also confirm to the governmental entity that thebackup copy has been made. The backup copy shall be created within two business days afterreceipt by the service provider of the subpoena or court order.
(b) Notice to the subscriber or customer shall be made by the governmental entity withinthree days after receipt of confirmation, unless the notice is delayed under Subsection 77-23b-6(1).
(c) The service provider may not destroy the backup copy until the later of:
(i) the delivery of the information; or
(ii) the resolution of any proceedings, including appeals of any proceeding, concerningthe government's subpoena or court order.
(d) The service provider shall release the backup copy to the requesting governmentalentity no sooner than 14 days after the governmental entity's notice to the subscriber or customer,if the service provider:
(i) has not received notice from the subscriber or customer that the subscriber orcustomer has challenged the governmental entity's request; and
(ii) has not initiated proceedings to challenge the request of the governmental entity.
(e) A governmental entity may seek to require the creation of a backup copy underSubsection (1)(a) if in its sole discretion the entity determines that there is reason to believe thatnotification under Section 77-23b-4 of the existence of the subpoena or court order may result indestruction of or tampering with evidence. This determination is not subject to challenge by thesubscriber, customer, or service provider.
(2) (a) Within 14 days after notice by the governmental entity to the subscriber orcustomer under Subsection (1)(b), the subscriber or customer may file a motion to quash thesubpoena or vacate the court order, with copies served upon the governmental entity, and withwritten notice of the challenge to the service provider. A motion to vacate a court order shall befiled in the court that issues the order. A motion to quash a subpoena shall be filed in theappropriate district court. The motion or application shall contain an affidavit or swornstatement:
(i) that the applicant is a customer or subscriber to the service from which the contents ofelectronic communications maintained for him have been sought; and
(ii) that the applicant's reason for believing the records sought are not relevant to alegitimate law enforcement inquiry or that there has not been substantial compliance with theprovisions of this chapter in some other respect.
(b) Service shall be made under this section upon a governmental entity by delivering ormailing by registered or certified mail a copy of the papers to the person, office, or departmentspecified in the notice the customer received under this chapter. For purposes of this subsection,"deliver" has the same meaning as under the Utah Rules of Criminal Procedure.
(c) If the court finds that the customer has complied with Subsections (2)(a) and (b), the
court shall order the governmental entity to file a sworn response, that may be filed in camera ifthe governmental entity includes in its response the reasons making in camera reviewappropriate. If the court is unable to determine the motion or application on the basis of theparties' initial allegations and response, the court may conduct additional proceedings as itconsiders appropriate. All proceedings shall be completed, and the motion or applicationdecided, as soon as practicable after the filing of the governmental entity's response.
(d) If the court finds that the applicant is not the subscriber or customer for whom thecommunications sought by the governmental entity are maintained, or that there is a reason tobelieve that the law enforcement inquiry is legitimate and that the communications sought arerelevant to that inquiry, it shall deny the motion or application and order the process enforced. Ifthe court finds that the applicant is the subscriber or customer for whom the communicationssought by the governmental entity are maintained, and that there is no reason to believe that thecommunications sought are relevant to a legitimate law enforcement inquiry, or that there has notbeen substantial compliance with this chapter, it shall order the process quashed.
(e) A court order denying a motion or application under this section is not considered afinal order, and no interlocutory appeal may be taken from it by the customer or subscriber.
Enacted by Chapter 251, 1988 General Session