[Orin Kerr] The Fourth Amendment and email preservation letters

When investigators learn that a target of a criminal case has an email account with a known address, it is common for them to send a preservation letter to the email provider. A preservation letter tells the provider to preserve the contents of the account because legal process may be on the way. This post considers a question: When does the use of preservation letters violate the Fourth Amendment? I think a significant amount of its use raises serious constitutional problems. This post explains why, and it offers some thoughts on how defense counsel can raise the issue in court.

I. Background

Preservation letters are often referred to as “f” letters, as they are provided for in 18 U.S.C. 2703(f). Here’s the text:

(f) Requirement To Preserve Evidence. (1)In general.— A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process. (2)Period of retention.— Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

The basic idea is that when the government lets the provider know that it is planning on serving legal process on the provider for the records, the provider is supposed to save a copy of the relevant account records. The provision was added in 1996, as Section 804 of the the Antiterrorism and Effective Death Penalty Act, to deal with the problem of routinely deleted company records. In the 1990s, it was common for Internet providers to delete account records after 30 or 60 days. If an Internet provider stored records for 30 days, and the government learned of the account on Day 29 after the crime occurred, the provider might delete the records in the ordinary course before the legal process was obtained. The preservation provision avoids that. It envisions that the provider will hold on to the records so that they won’t be deleted in the ordinary course by the time the government comes back with its legal process.

The language used is odd, though, for two reasons. First, it is written partly as an order and partly as an option. The provider “shall” take steps in response to a “request,” the statute says, which is a weird mix of mandatory and permissive language. Second, the authority applies to “records and other evidence,” which leaves it somewhat unclear as to whether it means only metadata or also includes contents. Section 2703 refers to metadata as “records or other information pertaining to a subscriber to or customer of such service (not including the contents of communications).” The phrase “records and other evidence” is textually broader than that, although it’s not clear whether that difference was intentional. Note that the statute refers to a “court order or other legal process” without also mentioning a warrant that would be obtained for contents, which might suggest that the provision was intended to apply only to non-content records that (especially in the 1990s) might be deleted by the provider rather than contents that could be deleted by the account holder.

Despite this ambiguity, the preservation authority is routinely used by the government to preserve contents of communications. The Justice Department’s model 2703(f) letter expressly requests preservation of contents. And it turns out that a lot of investigators and prosecutors issue such letters often. You never know when a target might delete his incriminating files, they figure, so just in case, you can send off a letter right away. No cause is required, and there is no oversight. The statute gives the government 90 days of preservation plus another 90 days with renewed request. That long time window lets them issue letters readily up front and to then see how the investigation unfolds.

II. Why Use of Preservation Letters Raises Serious Fourth Amendment Problems

Now we get to the big question: How does using 2703(f) letters to preserve contents of communications square with the Fourth Amendment? I think that the use of preservation letters for contents raises really serious constitutional concerns. Here’s why.

First, when providers preserve accounts in response to letters, they are state actors for Fourth Amendment purposes. They are acting pursuant to a law that says that they “shall take all necessary steps to preserve records” in response to the notice. See In the Matter of Warrant to Search a Certain E-Mail Account Controlled and Maintained by Microsoft Corporation, 829 F.3d 197 (2d Cir. 2016) (noting in the SCA context that “[w]hen the government compels a private party to assist it in conductin