non‐content records can be obtained by a court order (a “§ 2703(d) order”), which may
be issued only upon a statement of ��specific and articulable facts showing . . .
reasonable grounds to believe that the contents or records . . . are relevant and material
to an ongoing criminal investigation.” § 2703(c)(2), (d). The government may also
obtain some user content with an administrative subpoena or a § 2703(d) order, but
only if notice is provided to the service provider’s subscriber or customer.
§ 2703(b)(1)(B). To obtain “priority stored communications” (our phrase), as described
below, the Act generally requires that the government first secure a warrant that has
been issued “using the procedures described in the Federal Rules of Criminal
Procedure,” or using State warrant procedures, both of which require a showing of
probable cause. 17 Priority stored communications fall into two categories: For
Thus, § 2703, “Required disclosure of customer communications or records,” provides in part
as follows:
(a) Contents of wire or electronic communications in electronic
storage.―A governmental entity may require the disclosure by a
provider of electronic communication service of the contents of a
wire or electronic communication, that is in electronic storage in an
electronic communications system for one hundred and eighty days
or less, only pursuant to 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. A governmental entity may require the
disclosure by a provider of electronic communications services of the
contents of a wire or electronic communication that has been in
electronic storage in an electronic communication system for more
than one hundred and eighty days by the means available under
subsection (b) of this section.
(b) Contents of wire or electronic communications in a remote
computing service.—(1) A governmental entity may require a
provider of remote computing service to disclose the contents of any
wire or electronic communication to which this paragraph is made
applicable by paragraph (2) of this subsection—
17
17
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