2010 Pennsylvania Code
Title 18 - CRIMES AND OFFENSES
Chapter 57 - Wiretapping and Electronic Surveillance
5744 - Backup preservation.

     § 5744.  Backup preservation.
        (a)  Backup preservation.--
            (1)  An investigative or law enforcement officer acting
        under section 5743(b)(2) (relating to requirements for
        governmental access) may include in its subpoena or court
        order a requirement that the service provider to whom the
        request is directed create a backup copy of the contents of
        the electronic communications sought in order to preserve
        those communications. Without notifying the subscriber or
        customer of the subpoena or court order, the service provider
        shall create the backup copy as soon as practicable,
        consistent with its regular business practices, and shall
        confirm to the investigative or law enforcement officer that
        the backup copy has been made. The backup copy shall be
        created within two business days after receipt by the service
        provider of the subpoena or court order.
            (2)  Notice to the subscriber or customer shall be made
        by the investigative or law enforcement officer within three
        days after receipt of confirmation that the backup copy has
        been made, unless the notice is delayed pursuant to section
        5745(a) (relating to delayed notice).
            (3)  The service provider shall not destroy or permit the
        destruction of the backup copy until the later of:
                (i)  the delivery of the information; or
                (ii)  the resolution of all proceedings, including
            appeals of any proceeding, concerning the government's
            subpoena or court order.
            (4)  The service provider shall release the backup copy
        to the requesting investigative or law enforcement officer no
        sooner than 14 days after the officer's notice to the
        subscriber or customer if the service provider has not:
                (i)  received notice from the subscriber or customer
            that the subscriber or customer has challenged the
            officer's request; and
                (ii)  initiated proceedings to challenge the request
            of the officer.
            (5)  An investigative or law enforcement officer may seek
        to require the creation of a backup copy under paragraph (1)
        if in his sole discretion the officer determines that there
        is reason to believe that notification under section 5743 of
        the existence of the subpoena or court order may result in
        destruction of or tampering with evidence. This determination
        is not subject to challenge by the subscriber, customer or
        service provider.
        (b)  Customer challenges.--
            (1)  Within 14 days after notice by the investigative or
        law enforcement officer to the subscriber or customer under
        subsection (a)(2), the subscriber or customer may file a
        motion to quash the subpoena or vacate the court order,
        copies to be served upon the officer and written notice of
        the challenge to be given to the service provider. A motion
        to vacate a court order shall be filed in the court which
        issued the order. A motion to quash a subpoena shall be filed
        in the court which has authority to enforce the subpoena. The
        motion or application shall contain an affidavit or sworn
        statement:
                (i)  stating that the applicant is a customer of or
            subscriber to the service from which the contents of
            electronic communications maintained for the applicant
            have been sought; and
                (ii)  containing the applicant's reasons for
            believing that the records sought are not relevant to a
            legitimate investigative or law enforcement inquiry or
            that there has not been substantial compliance with the
            provisions of this subchapter in some other respect.
            (2)  Service shall be made under this section upon the
        investigative or law enforcement officer by delivering or
        mailing by registered or certified mail a copy of the papers
        to the person, office or department specified in the notice
        which the customer has received pursuant to this subchapter.
        For the purposes of this section, the term "delivery" has the
        meaning given that term in the Pennsylvania Rules of Civil
        Procedure.
            (3)  If the court finds that the customer has complied
        with paragraphs (1) and (2), the court shall order the
        investigative or law enforcement officer to file a sworn
        response, which may be filed in camera if the investigative
        or law enforcement officer includes in its response the
        reasons which make in camera review appropriate. If the court
        is unable to determine the motion or application on the basis
        of the parties' initial allegations and responses, the court
        may conduct such additional proceedings as it deems
        appropriate. All such proceedings shall be completed and the
        motion or application decided as soon as practicable after
        the filing of the officer's response.
            (4)  If the court finds that the applicant is not the
        subscriber or customer for whom the communications sought by
        the investigative or law enforcement officer are maintained,
        or that there is reason to believe that the investigative or
        law enforcement inquiry is legitimate and that the
        communications sought are relevant to that inquiry, it shall
        deny the motion or application and order the process
        enforced. If the court finds that the applicant is the
        subscriber or customer for whom the communications sought by
        the governmental entity are maintained, and that there is not
        reason to believe that the communications sought are relevant
        to a legitimate investigative or law enforcement inquiry, or
        that there has not been substantial compliance with the
        provisions of this subchapter, it shall order the process
        quashed.
            (5)  A court order denying a motion or application under
        this section shall not be deemed a final order, and no
        interlocutory appeal may be taken therefrom. The Commonwealth
        or investigative or law enforcement officer shall have the
        right to appeal from an order granting a motion or
        application under this section.
     (Feb. 18, 1998, P.L.102, No.19, eff. imd.)

        1998 Amendment.  Act 19 amended subsec. (b).
        Cross References.  Section 5744 is referred to in sections
     5741, 5746 of this title.