Backup preservation; customer notification; challenges by customer.

(1) An investigative or law enforcement officer acting under s. 934.23(2)(b) may include in the subpoena or court order upon which such action is based 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 such subpoena or court order, such service provider must create such backup copy as soon as practicable consistent with its regular business practices and shall confirm to the investigative or law enforcement officer that such backup copy has been made. Such backup copy must be created within 2 business days after receipt by the service provider of the subpoena or court order.

(2) Notice to the subscriber or customer must be made by the investigative or law enforcement officer within 3 days after the receipt of such confirmation, unless such notice is delayed pursuant to s. 934.25(1).

(3) The service provider may not destroy the backup copy until the later of:

(a) The actual receipt by the requesting investigative or law enforcement officer of the information; or

(b) The resolution of any proceeding, including appeals thereof, concerning the government’s subpoena or court order.

(4) The service provider shall release the backup copy to the requesting investigative or law enforcement officer no sooner than 14 days after the investigative or law enforcement officer’s notice to the subscriber or customer if such service provider:

(a) Has not received notice from the subscriber or customer that the subscriber or customer has challenged the investigative or law enforcement officer’s request, and

(b) Has not initiated proceedings to challenge the request of the investigative or law enforcement officer.

(5) An investigative or law enforcement officer may seek to require the creation of a backup copy under subsection (1) if in the sole discretion of such officer there is reason to believe that notification under s. 934.23 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 the service provider.

(6) Within 14 days after notice by the investigative or law enforcement officer to the subscriber or customer under subsection (2), the subscriber or customer may file a motion to quash the subpoena or vacate the court order seeking contents of electronic communications, with copies served upon the investigative or law enforcement officer and with written notice of such 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 circuit court in the circuit from which the subpoena issued. Such motion or application must contain an affidavit or sworn statement:

(a) Stating that the applicant is a subscriber or customer of the service from which the contents of electronic communications maintained for her or him have been sought, and

(b) 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 ss. 934.21-934.28 in some other respect.

(7) Except as otherwise obtained under paragraph (3)(a), service must be made under this section upon an investigative or law enforcement officer 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 subscriber or customer has received pursuant to ss. 934.21-934.28. For the purposes of this subsection, the term “delivering” shall be construed in accordance with the definition of “delivery” as provided in Rule 1.080, Florida Rules of Civil Procedure.

(8) If the court finds that the customer has complied with subsections (6) and (7), the court shall order the investigative or law enforcement officer’s agency or employing entity to file a sworn response, which may be filed in camera if the investigative or law enforcement officer’s agency or employing entity includes in its response the reasons which 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 such additional proceedings as it deems appropriate. All such proceedings must be completed and the motion or application decided as soon as practicable after the filing of the investigative or law enforcement officer’s agency’s or employing entity’s response.

(9)(a) 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 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 such process enforced.

(b) 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 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 this chapter, it shall order the process quashed.

(10) A court order denying a motion or application under this section shall not be deemed a final order and no interlocutory appeal or petition or request for discretionary review may be taken therefrom by the customer.