13-3016. Stored oral, wire and electronic communications; agency access; backup preservation; delayed notice; records preservation request; violation; classification

A. This section applies to oral, wire and electronic communications that are entrusted to a communication service provider or remote computing service solely for the purpose of transmission, storage or processing. Oral, wire and electronic communications that are in the possession of a person who is entitled to access the contents of such communications for any purpose other than transmission, storage or processing are ordinary business records that may be obtained by subpoena or court order.

B. An agency or political subdivision of this state may require the disclosure by a communication service provider or remote computing service of the contents of an oral, wire or electronic communication that has been in electronic storage for one hundred eighty days or less in one of the following ways:

1. Without prior notice to the subscriber or party, by obtaining a search warrant issued pursuant to chapter 38, article 8 of this title.

2. With prior notice to the subscriber or party, by serving a subpoena, except that notice may be delayed pursuant to subsection D of this section.

3. With prior notice to the subscriber or party, by obtaining a court order on an application and certification that contains specific and articulable facts showing that there are reasonable grounds to believe that the communication content sought is relevant to an ongoing criminal investigation, except that notice may be delayed pursuant to subsection D of this section.

C. An agency or political subdivision of this state may require the disclosure by a communication service provider or remote computing service of the contents of an oral, wire or electronic communication that has been in electronic storage for more than one hundred eighty days in one of the following ways:

1. Without notice to the subscriber or party, by obtaining a search warrant issued pursuant to chapter 38, article 8 of this title.

2. With prior notice to the subscriber or party, by serving a subpoena, except that notice may be delayed pursuant to subsection D of this section.

3. With prior notice to the subscriber or party, by obtaining a court order on an application and certification that contains specific and articulable facts showing that there are reasonable grounds to believe that the communication content sought is relevant to an ongoing criminal investigation, except that notice may be delayed pursuant to subsection D of this section.

D. Except as provided in subsection E of this section, the notice to the subscriber or party that is required by this section may be delayed for a period of not to exceed ninety days under any of the following circumstances:

1. If the applicant for a search warrant or court order pursuant to this section requests a delay of notification and the court finds that delay is necessary to protect the safety of any person or to prevent flight from prosecution, tampering with evidence, intimidation of witnesses or jeopardizing an investigation.

2. If the investigator or prosecuting attorney proceeding by subpoena executes a written certification that there is reason to believe that notice to the subscriber or party may result in danger to the safety of any person, flight from prosecution, tampering with evidence, intimidation of witnesses or jeopardizing an investigation. The agency shall retain a true copy of the certification with the subpoena.

E. If further delay of notification is necessary, extensions of up to ninety days each may be obtained by application to the court or certification pursuant to subsection D of this section.

F. Any agency acting pursuant to this section may apply for a court order directing the communication service provider or remote computing service not to notify any other person of the existence of the subpoena, court order or warrant for such period as the court deems appropriate. The court shall grant the application if it finds that there is reason to believe that notice may cause an adverse result described in subsection D of this section. A person who violates an order issued pursuant to this subsection is guilty of a class 1 misdemeanor.

G. On the expiration of any period of delay under this section, the agency shall deliver to the subscriber or party a copy of the process used and notice including:

1. That information was requested from the service provider.

2. The date on which the information was requested.

3. That notification to the subscriber or party was delayed.

4. The identity of the court or agency ordering or certifying the delay.

5. The provision of this section by which delay was obtained.

6. That any challenge to the subpoena or order must be filed within fourteen days.

H. On the request of an agency or political subdivision of this state, a communication service provider or remote computing service shall take all necessary steps to preserve records, communication content and other evidence in its possession pending the issuance of a court order or other process. The communication service provider or remote computing service shall retain the preserved records, communication content and other evidence for ninety days. On the renewed request of an agency or political subdivision, the preservation period may be extended for an additional ninety days. Except as provided in section 13-3011, a person shall not notify the subscriber or party during the period of the preservation request.