2006 Minnesota Statutes

626A.29 BACKUP PRESERVATION.
    Subdivision 1. Backup copy. (a) A governmental entity acting under section 626A.28,
subdivision 2 , paragraph (b), 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 a
backup copy, as soon as practicable, consistent with its regular business practices and shall confirm
to the governmental entity that the backup copy has been made. The backup copy must be created
within two business days after receipt by the service provider of the subpoena or court order.
(b) Notice to the subscriber or customer must be made by the governmental entity within
three days after receipt of the confirmation, unless notice is delayed under section 626A.30,
subdivision 1 .
(c) The service provider must not destroy a backup copy until the later of:
(1) the delivery of the information; or
(2) the resolution of any proceedings, including appeals of any proceeding, concerning
the subpoena or court order.
(d) The service provider shall release the backup copy to the requesting governmental entity
no sooner than 14 days after the governmental entity's notice to the subscriber or customer if
the service provider:
(1) has not received notice from the subscriber or customer that the subscriber or customer
has challenged the governmental entity's request; and
(2) 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 under
subdivision 1, paragraph (a), if in its sole discretion the entity determines that there is reason to
believe that notification under section 626A.28 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 or customer or service provider.
    Subd. 2. Customer challenges. (a) Within 14 days after notice by the governmental entity
to the subscriber or customer under subdivision 1, paragraph (b), the subscriber or customer
may file a motion to quash the subpoena or vacate the court order, with copies served upon the
governmental entity and with written notice of the challenge to the service provider. A motion
to vacate a court order must be filed in the court which issued the order. A motion to quash a
subpoena must be filed in the district court of the county in which the governmental entity issuing
the subpoena is located. The motion or application must contain an affidavit or sworn statement:
(1) stating that the applicant is a customer or subscriber to the service from which the
contents of electronic communications maintained for the applicant have been sought; and
(2) stating 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 this chapter in some other respect.
(b) Service must be made under this section upon a governmental entity 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 under sections 626A.26 to 626A.34. For
the purposes of this section, the term "delivery" means handing it to the person specified in the
notice or handing it to the person in charge of the office or department specified in the notice or
the designee of the person in charge.
(c) If the court finds that the customer has complied with paragraphs (a) and (b), the court
shall order the governmental entity to file a sworn response. The response may be filed in camera
if the governmental entity includes in its response the reasons that 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 response, the court may conduct additional proceedings as it
considers appropriate. Proceedings must be completed and the motion or application decided 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 the
communications sought by the governmental entity are maintained, or that there is a 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 by the governmental entity are maintained, and that there is not a 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 626A.26 to 626A.34, it shall
order the process quashed.
(e) 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 by the customer.
History: 1986 c 444; 1988 c 577 s 50,62; 1989 c 336 art 2 s 8