electronic communications stored recently (that is, for less than 180 days) by an ECS, the
government must obtain a warrant. § 2703(a). For older electronic communications and
those held by an RCS, a warrant is also required, unless the Government is willing to
provide notice to the subscriber or customer. § 2703(b)(1)(A).
As noted, § 2703 calls for those warrants issued under its purview by federal
courts to be “issued using the procedures described in the Federal Rules of Criminal
Procedure.” Rule 41 of the Federal Rules of Criminal Procedure, entitled “Search and
Seizure,” addresses federal warrants. It directs “the magistrate judge or a judge of a
state court of record” to issue the warrant to “an officer authorized to execute it.” Rule
41(e)(1). And insofar as territorial reach is concerned, Rule 41(b) describes the extent of
(A) without required notice to the subscriber or customer, if the
governmental entity obtains a warrant issued using the
procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued using State
warrant procedures) by a court of competent jurisdiction; or
(B) with prior notice from the governmental entity to the
subscriber or customer if the governmental entity—
(i) uses an administrative subpoena authorized by a
Federal or State statute or a Federal or State grand jury or
trial subpoena; or
(ii) obtains a court order for such disclosure under
subsection (d) of this section; except that delayed notice
may be given pursuant to section 2705 of this title. . . .
(g) Presence of officer not required.‐‐Notwithstanding section 3105
of this title, the presence of an officer shall not be required for
service or execution of a search warrant issued in accordance with
this chapter requiring disclosure by a provider of electronic
communications service or remote computing service of the
contents of communications or records or other information
pertaining to a subscriber to or customer of such service.
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