Recently, I wrote an article for a law review. Internet Content Preservation is Limited by the Fourth Amendment65 St. Louis University Law Journal 753 (2021): The widespread practice by governments of directing Internet service providers to store and copy Internet account contents without probable cause, even reasonable suspicion. This is in the event that they have probable cause to access the content with warrants. This practice is known as “preservation” because it applies to thousands of Internet account every year. This article explains why I believe current preservation practices violate the Constitution. Preservation is an Fourth Amendment seizure. It should normally require probable cause.
Naturally, my article points out a Fourth Amendment claim I believe criminal defense attorneys should make. It’s an argument that I have suggested to criminal defense attorneys for many years. However, defense attorneys have not taken up my suggestion and the matter has remained unresolved.
A model motion to suppress was written to help defense attorneys make their argument more straightforward. Here’s what I think criminal defense attorneys should do to litigate Fourth Amendment preservation limitations. The model motion can be viewed in.pdf format by clicking here. Preservation Draft Motion April 20, 2022.pdf. You can also get the draft of the motion in Microsoft Word format if you are interested in filing it if you’re an attorney. Preservation Draft Motion April 20, 2022.docx.
As I receive suggestions and future court rulings, I will continue to tweak the draft motion. My hope is that defense lawyers will find it more straightforward to raise the issue with me by having a draft of my motion. Defense lawyers will only need to make small changes to this motion in order to utilize it in their case.
The motion’s cover page explains that the motion can be useful when the government seeks to use content obtained from an Internet client account. If that’s the case, the defense counsel should question the government about whether the warrant to access the contents was issued before preservation as required by 18 U.S.C. § 2703(f)— and if so, on what date the preservation request was made. You can file the brief if preservation was requested. In the brief, you will need to include both the date of preservation and the date when the warrant was served.
Last but not least, I would love to hear from criminal defense lawyers if you have suggestions on how we can promote this model motion (email: orin.berkeley.edu). I hope that this model motion will lead to actual motions being filed and that that leads to decisions on the question that creates Fourth Amendment law.