2A:156A-30. Backup preservation

24. Backup preservation.

a. (1) A law enforcement agency acting pursuant to section 23 of P.L.1993, c.29 (C.2A:156A-29) may include in a court order a requirement that the service provider to whom the request is directed create a backup copy of the contents of the electronic communication sought in order to preserve those communications. Without notifying the subscriber or customer of the court order, the service provider shall create the backup copy as soon as practicable, consistent with its regular business practices, but in no event later than within two business days after receipt by the provider of the court order and shall confirm to the law enforcement agency that the backup copy has been made.

(2) Notice to the subscriber or customer shall be made by the law enforcement agency within three days after receipt of confirmation that the backup copy has been made.

(3) The service provider shall not destroy or permit the destruction of the backup copy until either the delivery of the information or the resolution of all proceedings, including any appeals, concerning the court order, whichever is later.

(4) The service provider shall release the backup copy to the requesting law enforcement agency if, 14 days after the agency's notice to the subscriber or customer, the provider has not received written notice from the subscriber or customer that the subscriber or customer has filed a motion to vacate the order pursuant to subsection b. of this section or the provider has not initiated proceedings to challenge the request of the agency.

b. Within 14 days after notice by the law enforcement agency to the subscriber or customer under paragraph (2) of subsection a. of this section the subscriber or customer may file a motion to vacate the court order, copies to be served upon the agency 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. The motion or application shall contain an affidavit or sworn statement 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 shall contain the applicant's reasons for believing that the records sought are not relevant to a legitimate law enforcement inquiry or that there has not been substantial compliance with the provisions of sections 21 through 26 of P.L.1993, c.29 (C.2A:156A-27 through C.2A:156A-32).

c. Service shall be made upon the law enforcement agency 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 received pursuant to paragraph (2) of subsection a. of this section.

d. If the court finds that the subscriber or customer has properly complied with subsections b. and c. of this section, the court shall order the law enforcement agency to file a sworn response, which may be filed in camera if it includes the reasons which make in camera review appropriate. If the court is unable to determine the motion or application on the basis of the 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 agency's response.

e. If the court finds that the applicant is not the subscriber or customer for whom the communications sought by the law enforcement agency are maintained, or that there is reason to believe that the 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 are maintained, and that there is no reason to believe that the communications sought are relevant to a legitimate law enforcement inquiry, or that there has not been substantial compliance with the provisions of sections 21 through 26 of P.L.1993, c.29 (C.2A:156A-27 through C.2A:156A-32), it shall order the process quashed.

L.1993,c.29,s.24.